Speer v. US National Bank et al

Filing 56

ORDER granting 47 Motion to Dismiss; denying as moot 51 MOTION for Reconsideration re 50 Order on Motion to Remand to State Court. The Plaintiff's amended complaint, doc. no. 40 , is dismissed with prejudice. The clerk is directed to close this case. Signed by District Judge Stefan R. Underhill on 3/26/2024. (Markowitz, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SHERI SPEER,
Plaintiff,

No. 3:22-cv-00668 (SRU)

v.
UNITED STATES NATIONAL BANK, et
al.,
Defendants.
ORDER
This case principally arises from Sheri Speer’s attempt to identify the owner and servicer
of the mortgage on a property that she owns in Norwich, Connecticut, which is now the subject
of a foreclosure action in Connecticut state court. Ms. Speer, proceeding pro se, brings this
action against United States National Bank as Trustee for Cabana Series V Trust (“National
Bank”), SN Servicing Corporation (“SN Servicing”), and Igloo Series V. Trust (“Igloo Series
Trust”) (collectively, the “Defendants”). After I dismissed Ms. Speer’s original complaint
without prejudice, she filed an amended complaint on April 14, 2023. See Doc. No. 40. That
amended complaint asserts claims against the Defendants for breach of contract and violation of
the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. §§ 42–110a et seq. For
the reasons that follow, the Defendants’ motion to dismiss Ms. Speer’s amended complaint, doc.
no. 47, is granted, and Ms. Speer’s motion for reconsideration of my order denying her motion
to remand, doc no. 51, is denied as moot.
I.

BACKGROUND
The Court assumes familiarity with the facts and background of this case, as set forth in

my Order dismissing Ms. Speer’s original complaint. See Doc. No. 39. I therefore only recount
facts relevant to the instant motion to dismiss.

Ms. Speer originally filed this action in Connecticut Superior Court, and it was removed
to this Court on May 16, 2022. See Doc. No. 1. Ms. Speer’s original complaint sought a
declaratory judgment to ascertain the rights and obligations of the parties under a promissory
note (the “Note”) and mortgage agreement (the “Mortgage”) secured by a property at 9 Beckwith
Street in Norwich, Connecticut (the “Property”), and alleged that the Defendants engaged in
illegal and unfair practices in violation of the Fair Debt Collection Practices Act (FDCPA) and
the Connecticut Unfair Trade Practices Act (CUTPA). On March 20, 2024, I dismissed Ms.
Speer’s complaint without prejudice, and granted Ms. Speer one opportunity to amend her
complaint. See Doc. No. 39. On April 14, 2023, Ms. Speer filed an amended complaint, asserting
two claims for breach of contract and violation of CUTPA, along with a motion to remand the
case to state court, which I denied on January 12, 2024. See Docs. No. 40-41, 50. On May 5,
2023, the Defendants moved to dismiss Ms. Speer’s entire amended complaint. See Doc. No. 47.
On January 26, 2024, Ms. Speer moved for reconsideration of my order denying her motion to
remand. See Doc. No. 51. There are no other pending motions in this case.
II.

STANDARD OF REVIEW
A.

Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure Rule 12(b)(6) is designed “merely to assess the legal feasibility of a complaint, not to
assay the weight of evidence which might be offered in support thereof.” Ryder Energy
Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)
(quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the
material facts alleged in the complaint as true, draw all reasonable inferences in favor of the
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plaintiff, and decide whether it is plausible that the plaintiff has a valid claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 678–79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007);
Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Under Twombly, “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” and assert a cause of action with enough heft to show entitlement to relief and
“enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570; see also
Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.”). The plausibility standard set forth in Twombly and
Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief” through more
than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555 (cleaned up). Plausibility at the pleading stage is nonetheless distinct
from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that
actual proof of [the claims] is improbable, and . . . recovery is very remote and unlikely.” Id. at
556 (cleaned up).
B.

Federal Rule of Civil Procedure 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), “[a] case is properly dismissed for lack
of subject matter jurisdiction . . . when the district court lacks the statutory or constitutional
power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). A dismissal
pursuant to Rule 12(b)(1) may be made by motion of a party or raised sua sponte by the Court.
See, e.g., Westmoreland Capital Corp. v. Findlay, 100 F.3d 263, 266 (2d Cir.1996). When
deciding whether to dismiss a claim pursuant to Rule 12(b)(1), “the court must take all facts
alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,” but
“jurisdiction must be shown affirmatively, and that showing is not made by drawing from the

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pleadings inferences favorable to the party asserting it.” Morrison v. Nat'l Australia Bank Ltd.,
547 F.3d 167, 170 (2d Cir. 2008) (internal citations omitted). A court may also consider
materials outside of the pleadings to resolve any jurisdictional disputes. J.S. v. Attica Cent. Schs.,
386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S. 968 (2005).
C.

Construing Pro Se Pleadings

Ms. Speer proceeds pro se. Therefore, her pleadings are entitled to “special solicitude,”
Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010); are assessed under “less stringent
standards than formal pleadings drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980)
(cleaned up); and are interpreted “to raise the strongest arguments that they suggest,” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (cleaned up). On the other hand, a
court’s “duty to liberally construe a plaintiff’s complaint” is not “the equivalent of a duty to rewrite it.” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (cleaned up).
A court will not credit “threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements” nor “invent factual allegations” that are not in the pleadings. Chavis
v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (cleaned up).
III.

DISCUSSION
A.

The Defendants’ Motion to Dismiss (doc. no. 47)

The Defendants move to dismiss Ms. Speer’s amended complaint because it fails to state
a claim upon which relief can be granted. For the reasons that follow, the Defendants’ motion is
granted.
1.

Ms. Speer’s Request for Declaratory Relief

As an initial matter, I note that, though she no longer formally pleads a claim for a
declaratory judgment, Ms. Speer’s amended complaint continues to seek declaratory relief.
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Count One of Ms. Speer’s original complaint sought a declaratory judgment “as to the holder of
the Note, the owner of the Mortgage, and the servicing rights of the Mortgage.” Compl., Doc.
No. 1. In her amended complaint, Ms. Speer’s first count instead asserts a claim for breach of
contract. See Am. Compl., Doc. No. 40. However, in support of her first count, as amended, Ms.
Speer makes nearly identical factual allegations to those made in the first count of her original
complaint (copying paragraphs one through thirteen and adding paragraphs fourteen through
seventeen) and continues to seek, in addition now to monetary damages, a “[d]eclaratory
judgment as to who owns the mortgage, and servicing rights on [her] property and quieting title
to all others who would assert said ownership as of April 30, 2022.” Id. at 4.
In my earlier order dismissing Ms. Speer’s original complaint, I held that Ms. Speer had
not made any allegations supporting a claim for declaratory judgment or to quiet title, because
the documents incorporated in the complaint unambiguously established that Cabana Series
Trust held the Mortgage and that SN Servicing had the rights to service the Mortgage. See Doc.
No. 39, at 8-10. None of the allegations that Ms. Speer has added to her amended complaint,
which allege that Ms. Speer was denied the benefit of various terms of the Note, see doc. no. 40,
at ¶ 15, create any controversy about the status of the property. Therefore, I conclude that there
remains an absence of a substantial dispute that would warrant the issuance of declaratory
judgment.
Moreover, under Younger v. Harris, 401 U.S. 37 (1971), federal courts must abstain from
considering requests for injunctive or declaratory relief where federal review would disrupt state
proceedings that: (1) are pending; (2) implicate important state interests; and (3) provide the
plaintiff an adequate opportunity to litigate federal claims. See Hansel v. Town Ct. for Town of
Springfield, 56 F.3d 391, 393 (2d Cir. 1995). See also Samuels v. Mackell, 401 U.S. 66 (1971)

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(extending Younger’s abstention analysis to requests for declaratory relief that would frustrate
pending state proceedings). “When Younger applies, abstention is mandatory and its application
deprives the federal court of jurisdiction in the matter.” Diamond "D" Const. Corp. v. McGowan,
282 F.3d 191, 197 (2d Cir. 2002) (citing Colorado Water Conserv. Dist. v. United States, 424
U.S. 800, 816 n. 22 (1976)). The requirements of Younger abstention are met here, and thus Ms.
Speer’s request for declaratory relief must be dismissed for lack of subject matter jurisdiction.
Since the filing of this lawsuit, but before Ms. Speer amended her complaint, Cabana
Series Trust commenced foreclosure proceedings against Ms. Speer in Connecticut Superior
Court. See United States Bank Trust National Association, as Trustee of Cabana Series V Trust
v. Sheri Speer, et al., Dkt. KNL-CV22-6058114-S (the “foreclosure case”). That proceeding is
ongoing, and concerns the same property that is the subject matter of this case. Ms. Speer’s claim
for declaratory relief would undeniably interfere with the foreclosure case, because she asks this
court to determine the rights and obligations of the parties with respect to the property currently
under the jurisdiction of the state court.
Second, the foreclosure case concerns the disposition of real property and hence
implicates important state interests. See Clark v. Bloomberg, 2010 WL 1438803, at *2 (E.D.N.Y.
Apr. 12, 2010) (Younger abstention doctrine precludes federal district court from staying pending
state-court foreclosure and eviction proceedings because “both concern the disposition of real
property and hence implicate important state interests.”). And, finally, Ms. Speer has not alleged
any reason to doubt that the state proceeding provides her with an adequate forum to raise her
claim for declaratory judgment. In fact, the declaratory relief that she seeks—a determination of
her own and the Defendants’ rights and obligations under the Note and the Mortgage—is at the
heart of the foreclosure case. Therefore, Ms. Speer’s request for declaratory relief is denied.

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However, it is “well established that Younger abstention is inappropriate on a claim for
money damages.” Diamond "D" Const. Corp., 282 F.3d at 196 n.2. Therefore, the doctrine of
Younger abstention does not deprive this Court of jurisdiction over Ms. Speer’s claims for
damages for breach of contract and violation of CUTPA. I will accordingly consider The
Defendants’ arguments to dismiss these claims pursuant to Rule 12(b)(6).
2.

Breach of Contract

Ms. Speer alleges that The Defendants breached a contract—specifically, the Mortgage—
because they failed to provide an opportunity for Ms. Speer to cure her default before
commencing a foreclose, and did not provide timely advance notice of transfer of interest in the
Note, Mortgage, and servicing rights related to the Mortgage. See Am. Compl., Doc. No. 40, at
¶¶ 15-16. Ms. Speer further alleges, without any explanation, that “[a]s a consequence of the
Defendants’ breach,” she “was damaged.” Id. at 17. Under Connecticut law, the elements of a
claim for breach of contract are “the formation of an agreement, performance by one party,
breach of the agreement by the other party, and damages.” Meyers v. Livingston, Adler, Pulda,
Meiklejohn & Kelly, P.C., 311 Conn. 282, 291 (2014).
The Defendants argue that Ms. Speer’s claim for breach of contract should be dismissed
because the record contradicts her allegations of actual breach of contract. See Mot. to Dismiss,
Doc. No. 48, at 7-8. Though the factual arguments that the Defendants make with respect to Ms.
Speer’s failure to adequately plead the third element of her claim—breach—together with the
relevant documents that they attach to their motion as exhibits, seem convincing, this Court need
not reach an analysis of that element of Ms. Speer’s claim. Such an analysis seems inappropriate
at this stage given Ms. Speer’s pro se status and the fact that she has not had the benefit of
discovery. See Aff. in Opp’n, Doc. No. 49-1. Nor does this Court need to decide whether Ms.

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Speer’s bare allegation that she “was damaged,” when assessed under the less stringent standard
that must be applied to pro se complaints, is plausible. That is because Ms. Speer does not allege
that she has performed under the Mortgage. In fact, numerous of the allegations in Ms. Speer’s
amended complaint suggest the opposite—that she has failed to make timely mortgage
payments. See, e.g., Doc. No. 40, at ¶¶ 6-9, 22-23 (allegations regarding Ms. Speer’s receipt of
default letters from SN Servicing, and her applications for loan modification and loss
mitigation).
Because Ms. Speer fails to plead her own performance under the Mortgage, an essential
element of her breach of contract claim under Connecticut law, her claim must be dismissed.
This Court is not aware of any Connecticut caselaw establishing that a mortgagor may bring a
breach of contract claim if they fail to allege their own performance. And, other courts within the
Second Circuit have similarly dismissed breach of contract claims brought by plaintiff
mortgagors, either where those plaintiffs failed to allege their own performance, or where they
make allegations that indicate their failure to make required payments under the Mortgage. See,
e.g., Nichols v. BAC Home Loans Servicing LP, 2013 WL 5723072, at *10 (N.D.N.Y. Oct. 18,
2013); Harte v. Ocwen Fin. Corp., 2016 WL 3647687, at *5 (E.D.N.Y. July 1, 2016). The fact
that at least one of Ms. Speer’s allegations of breach—her allegation that she was not given an
opportunity to cure her default before the Defendants commenced a foreclosure action—could
not have occurred prior to her nonperformance does not compel a contrary conclusion. In the
foreclosure context, contractual requirements that come into effect only after a mortgagor’s
default, such as an opportunity to cure, are not rendered “meaningless” if they cannot be
enforced through a breach of contract action, because they may be asserted as a defense to the
foreclosure action. Harte, 2016 WL 3647687, at *4 (“[I]t is not the case that a plaintiff cannot

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enforce a defendant’s obligations under the mortgage, but in many cases the strictures of contract
claims require that a plaintiff enforce those obligations in the context of foreclosure
proceedings.”) (cleaned up). Finally, even assuming that Ms. Speer’s allegations regarding lack
of notice of transfer amounted to breach of the Mortgage, those allegations of breach cannot
plausibly have been material, and therefore would not excuse Ms. Speer’s duty to perform under
Connecticut law. See Slater v. Solon, 2021 WL 5277567, at *2-3 (Conn. Super. Ct. Oct. 19,
2021) (“[A] material breach of contract excuses the non-breaching party’s duty of performance .
. . the breach must be material, that is, it must be so important that it vitiates or destroys the
entire purpose for entering into the contract.”) (internal citations omitted).
Therefore, Ms. Speer’s failure to allege her performance under the Mortgage is fatal to
her breach of contract claim, and The Defendants’ motion to dismiss that claim is granted.
3.

CUTPA

In Count Two, Ms. Speer alleges that the Defendants violated CUTPA, which prohibits
“unfair methods of competition and unfair or deceptive acts or practices in the conduct of any
trade or commerce.” See Conn. Gen. Stat. § 42-110b(a). To state a CUTPA claim, a plaintiff
must allege that (1) the defendant(s) engaged in unfair or deceptive acts or practices in the
conduct of any trade or commerce; and (2) she 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., 287 Conn. 208, 217 (2008). The statute is “remedial in character . . . and must be
liberally construed in favor of those whom the legislature intended to benefit.” Fink v.
Golenbock, 238 Conn. 183, 213 (1996) (cleaned up); see also Conn. Gen. Stat. § 42-110g(a).
In support of her CUTPA claim, Ms. Speer copies verbatim the allegations made in her
original complaint to support the Fair Debt Collections Practices Act claim (FDCPA) she had
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pled in that complaint. Compare Compl., Doc. No. 1, at ¶¶ 14-18, with Am. Compl., Doc. No.
40, at ¶¶ 14-18. 1 Her amended complaint also pleads additional facts that she alleges amount to
slander of title, violation of the Real Estate Settlement Procedures Act (RESPA), and violation of
CUTPA generally. See Am. Compl., Doc. No. 40, at ¶¶ 19-27. In my earlier order dismissing
Ms. Speer’s original complaint, I concluded that she had failed to state a CUTPA claim because
she had only made a conclusory allegation that she had “suffered an ascertainable loss,” which
was not sufficient to satisfy the second element of her claim. See Doc. No. 39, at 13. However, in
her amended complaint Ms. Speer cures that defect, alleging more specifically that, because of
the Defendants’ actions, she has suffered “an accumulation of interest, default fees, significant
arrearages, attorneys’ fees, and a much higher mortgage payment, lost borrower incentive
payments under HAMP, and emotional distress.” Doc. No. 40, at ¶ 26.
Nonetheless, I conclude that Ms. Speer’ complaint, as amended, fails to state a CUTPA
claim upon which relief can be granted. To the extent that Ms. Speer continues to assert that the
Defendants’ actions violate the FDCPA, those allegations cannot be credited for the same
reasons that I explained in my prior order dismissing Ms. Speer’s original complaint: the FDCPA
only applies to Mortgage notes for personal residences, and Ms. Speer does not allege that the
Property is or has ever been her personal residence. See Doc. No. 39, at 13. The same is true with
respect to Ms. Speer’s allegations that the Defendants failed to comply with the requirements of
RESPA. See id., at n.5; Friedman v. Maspeth Fed. Loan & Sav. Ass’n, 30 F. Supp. 3d 183, 190
(E.D.N.Y. 2014) (“Credit transactions made primarily for business, commercial, or agricultural

1

I note the numbering of paragraphs in Ms. Speer’s amended complaint is inaccurate—the
paragraphs reach number 17 under the heading for Count One, and then under the heading for
Count Two the paragraphs return to number 14. At this point, I am referring to the allegations
made under the heading for Count Two, beginning with paragraph 14 thereunder.
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purposes are exempt from RESPA.”) (cleaned up). Ms. Speer also cannot state a claim for
slander of title because, as I concluded in my prior order, there is no dispute that Ms. Speer did in
fact take out a mortgage on the Property, which is currently held by Cabana Series Trust. Id. at 910. See also Bellemare v. Wachovia Mortg. Corp., 284 Conn. 193, 202 (2007) (“A cause of
action for slander of title consists of any false communication which results in harm to interests
of another having pecuniary value.”) (emphasis added).
Ms. Speer alleges that the Defendants erroneously denied her applications for loan
modification under the Home Affordable Modification Program (HAMP), which does not itself
confer a private right of action. However, she “may predicate a CUTPA claim on violations of
statutes or regulations that themselves do not allow for private enforcement,” such as HAMP.
See Cenatiempo v. Bank of Am., N.A., 333 Conn. 769, 792 n.16 (2019). To establish a CUTPA
claim, a plaintiff must establish that the alleged acts or practices are “unfair or deceptive,”
meaning that they “offend[] public policy,” are “immoral, unethical, oppressive, or
unscrupulous,” or “cause[] substantial injury to consumers.” Ramirez v. Health Net of Ne., Inc.,
285 Conn. 1, 19 (2008). Ms. Speer, in her complaint as well as her Memorandum in Opposition,
relies entirely on the Connecticut Supreme Court’s decision in Cenatiempo, which held that the
defendant, Bank of America’s, policies and procedures that resulted in widespread denials of
HAMP applications amounted to immoral, unethical, oppressive, or unscrupulous actions. See
Am. Compl., Doc. No. 40, at ¶ 20; Mem. in Opp’n, Doc. No. 49, at 11-12. Ms. Speer’s
allegations are distinguishable from the conduct at issue in Cenatiempo, however, because Ms.
Speer does not allege any pattern or practice of unethical conduct. She makes a conclusory
allegation that the Defendants “fail[] to diligently process applications” due to lack of “necessary
staffing and resources,” but even that conclusory allegation is contradicted by other allegations

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Ms. Speer makes that the Defendants denied her applications based on “failures to provide []
requested documentation, . . . investor restrictions, . . . [and] flawed evaluations of the
applications.” Id. at ¶¶ 22, 24. Even if the Defendants’ denials of Ms. Speer’s HAMP
applications were in fact erroneous, those individual denials would be more similar to “isolated
instance[s] of misinterpretation by the defendant of its obligations,” which Connecticut courts
have distinguished from unfair or deceptive acts or practices that violate CUTPA. Jacobs v.
Healey Ford-Subaru, Inc., 231 Conn. 707, 729 (1995). See also Massad-Zion Motor Sales v. IP
Networked Servs., Inc., 2023 WL 5928131 (Conn. Super. Ct. Sept. 7, 2023) (“The present case is
readily distinguishable from Cenatiempo because the plaintiff has not alleged nor provided any
evidence that the defendant has a pattern or course of conduct that is immoral, unethical,
oppressive, or unscrupulous. An isolated instance of misrepresentation does not suffice to
demonstrate unfair or deceptive behavior.”).
Therefore, I conclude that Ms. Speer has failed to state a plausible CUTPA claim, and the
Defendants’ motion to dismiss that claim is granted.
B.

The Plaintiff’s Motion for Reconsideration (doc. no. 51)

Ms. Speer also moves for reconsideration of my January 12, 2024 Order denying her
motion to remand the case to state court, doc. no. 50. Because Ms. Speer’s amended complaint is
dismissed, her motion for reconsideration is moot.
IV.

CONCLUSION
For the following reasons, the Defendants’ motion to dismiss, doc. no. 47, is granted,

and the Plaintiff’s motion for reconsideration, doc. no. 51, is denied as moot. The amended
complaint is dismissed with prejudice. The clerk is directed to close this case.
So ordered.
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Dated at Bridgeport, Connecticut, this 26th day of March 2024.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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