Vaccaro v. U.S. Bank, N.A.

Donna Vaccaro et al. v. U.S. Bank, N.A. et al

No. CV146050373S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

November 8, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION IN RE MOTION TO STRIKE #142

Brian T. Fischer, J.

FACTS

On October 16, 2014, the plaintiffs, Donna and Domenic Vaccaro filed their original summons and complaint alleging various causes of action against the defendants, ^[1] U.S. Bank, N.A. and Milford Law, LLC d/b/a Kapusta, Otzel, and Averaimo, the law firm that represented U.S. Bank, N.A., arising from an underlying foreclosure action (foreclosure action). On December 31, 2015, the plaintiffs filed a second amended complaint^[2] pursuant to the court's order Ecker, J., which is the operative complaint.

The plaintiffs, in their second amended complaint, allege the following facts. On or about October 28, 2013, the defendant served the foreclosure action on the plaintiffs. The plaintiffs made written offers to either payoff all sums due on the note or compromise, both during the foreclosure action and after it was dismissed, but the defendant never responded. The foreclosure action was dismissed on June 5 2014, in the plaintiffs' favor by the court, Maronich J., because the defendant failed to comply with court orders pursuant to the foreclosure mediation statute and production of certain documentation. After the foreclosure action was dismissed, the servicing agent for the note informed the plaintiffs that it had not received any offers of payoff or notice of any offers to compromise and denied any knowledge that the plaintiffs had made any offers. The plaintiffs suffered financial loss, damage to their reputations, and other harm as a result of the defendant's actions and assert claims for vexatious litigation, abuse of process, negligence, and other torts, all stemming from the dismissal of the foreclosure action.

On April 4, 2016, the defendant filed a motion to strike all of the counts against it, with a memorandum of law in support, on the ground that the plaintiffs failed to allege any of the essential elements of their assorted claims. The plaintiffs filed an objection and memorandum of law in support on June 27, 2016, and the defendant filed a reply memorandum on August 19, 2016. The matter was heard at short calendar on August 22, 2016.

DISCUSSION

" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services U.S.A., Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

I. Counts One, Three, and Five: Vexatious Litigation

The defendant first challenges the counts of the plaintiffs' second amended complaint alleging causes of action for both common-law and statutory vexatious litigation.^[3] The defendant argues that the plaintiffs have failed to plead sufficient facts to establish that the defendant brought the foreclosure action with malice and without probable cause and, therefore, cannot state claims for vexatious litigation. The plaintiffs argue that all four elements have been alleged in the second amended complaint.

" Vexatious litigation requires a plaintiff to establish that: (1) the previous lawsuit or action was initiated or procured by the defendant against the plaintiff; (2) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice; (3) the defendant acted without probable cause; and (4) the proceeding terminated in the plaintiff's favor." Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007). " In a vexatious suit action, the defendant is said to have acted with 'malice' if he acted primarily for an improper purpose; that is, for a purpose other than that of securing the proper adjudication of the claim on which [the proceedings] are based . . . Thus, while malice may be inferred from the lack of probable cause, lack of probable cause may not be inferred from malice." (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 256 n.16, 597 A.2d 807 (1991).

" Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of . . . Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." (Citation omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, supra, 220 Conn. 256. " [P]robable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause." (Emphasis in original.) Falls Church Group, Ltd v. Tyler, Cooper, & Alcorn, LLP, 281 Conn. 84, 103, 912 A.2d 1019 (2007). " A lack of probable cause cannot be inferred from the dismissal of the case." Cadle Co. v. D'Addario, 131 Conn.App. 223, 238, 26 A.3d 682 (2011).

In the present case, the plaintiffs allege that the defendant acted without probable cause because it was only assigned the mortgage, not the note. The plaintiffs allege that the defendant acted with malice in failing to (1) bring forth the original note and a credible witness to prove it was the holder of the note at the time the foreclosure action was commenced, and (2) comply with the court's order, Maronich, J., to provide the required mediation paperwork. The facts as alleged, however, do not sufficiently support an allegation that the defendant acted with malice and without probable cause. Although it is alleged that the defendant may not have properly followed procedure and failed to produce the required mediation paperwork, these allegations alone do not necessarily show that the initial filing of the foreclosure action was for a purpose other than collecting monies owed, and the facts do not sufficiently support such an allegation.

Further, even if the plaintiffs' allegation that the defendant was only assigned the mortgage and not the note is true, that is insufficient to support an allegation that the defendant lacked probable cause to bring the foreclosure action. An assignee can bring suit in its own name as well as the name of its assignor. See General Statutes § 52-118. Morever, the plaintiffs do not dispute defaulting on their mortgage.^[4] Finally, a lack of probable cause cannot be inferred from the fact that the foreclosure action was dismissed. In lieu of the fact that the plaintiffs have failed to allege facts that establish that the defendant acted with malice or lacked probable cause in bringing the foreclosure action, other than unsupported legal conclusions, the plaintiffs cannot support a claim for vexatious litigation. Therefore, counts one, three, and five are stricken.

II. Counts Seven and Nine: Reckless Misconduct and Negilgence

The defendant next challenges counts seven and nine of the plaintiffs' second amended complaint alleging claims of reckless misconduct and negligence, respectively, and argues that it did not owe the plaintiffs any legally cognizable duty. Even if a duty existed, the defendant argues that no breach occurred because the plaintiffs defaulted on their mortgage and thus, a foreclosure action could validly be brought against them. The plaintiffs argue that the elements of reckless misconduct and negligence have been pleaded because the plaintiffs allege the existence of a statute creating a duty.

" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action." (Internal quotation marks omitted.) Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 174, 72 A.3d 929 (2013). " To be legally sufficient, a count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff." Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985).

In the present case, the plaintiffs have failed to allege that a duty of care is imposed on lenders by the foreclosure mediation statutes or why one should be found to exist. Construing the second amended complaint broadly and realistically, it appears the plaintiffs base their allegations of a duty owed by the defendant to the plaintiffs on a failure by the defendant to timely provide certain paperwork, as required by General Statutes § 49-31l^[5] (c)(4), ^[6] during mediation and in continuing to...