Vossbrinck v. Eckert Seamans Cherin, & Mellott, LLC

301 F.Supp.3d 381

Karl Paul VOSSBRINCK, Plaintiff,

v.ECKERT SEAMANS CHERIN, AND MELLOTT, LLC, Defendant.

CIVIL CASE NUMBER 3:17–cv–00372 (VLB)

United States District Court, D. Connecticut.

Signed March 14, 2018

Karl Paul Vossbrinck, Norwalk, CT, pro se.

Tracy Ellis Williams, David V. Mignardi, Eckert Seamans Cherin & Mellott LLC, White Plains, NY, for Defendant.

MEMORANDUM OF DECISION ON MOTION TO DISMISS [DKT. 8]

Vanessa L. Bryant, United States District Judge

Plaintiff Karl Paul Vossbrinck ("Plaintiff" or "Mr. Vossbrinck"), brings this action against Defendant Eckert Seamans Cherin and Mellott, LLC ("Defendant" or "Eckert Seamans") for claims of replevin under Conn. Gen. Stat. § 52–515, civil theft under Conn. Gen. Stat. § 52–564, common law conversion, and deprivation of rights in violation of 42 U.S.C. § 1983. The case was initially filed in Connecticut state court but was properly removed under both diversity and federal question jurisdiction. See Dkt. 1–1 (Notice of Removal) at 4]. Defendants have moved to dismiss the case in its entirety pursuant to Fed. R. Civ. P. 12(b)(6) on the basis that Plaintiff's claims are time-barred and that the Plaintiff has failed to adequately plead each claim. For the reasons that follow, Defendant's Motion to Dismiss is GRANTED.

I. Background

The following facts and allegations are taken from the Complaint and assumed to be true for the purpose of this motion. This action arises out of a foreclosure of a mortgage on Plaintiff's home brought by Accredited Home Lenders, LLC ("Accredited") and Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of The Holders Of The Accredited Mortgage Loan Trust 2005–4 Asset Backed Notes the successor in title to the mortgage and note. See Accredited Home Lenders, Inc. (Deutsche Bank) v. Vossbrinck , judicial district of Waterbury, Docket No. CV–08–5007144–S; see also Vossbrinck v. Accredited Home Lenders, Inc. , No. CV125016343S, 2016 WL 3266384, at *1 (Conn. Super. Ct. May 26, 2016) (recognizing successor in title). Defendant Eckert Seamans is the law firm that represented Accredited in the foreclosure and Attorney Geraldine Cheverko ("Attorney Cheverko") is associated with the law firm.

On June 21, 2011, an Order of Strict Foreclosure was granted against Mr. Vossbrinck and a law date was set for August 23, 2011. [Dkt. 1–1 (Compl.) ¶ 1]. The Complaint does not allege that Mr. Vossbrinck redeemed legal title by the law day¹ or vacated the premises. See id. ¶¶ 1–2. An Order of Ejectment was issued on August 13, 2012. Id. ¶ 2. Attorney Cheverko of Eckert Seamans "was in contact with" Ms. Estelle Stevenson of Prudential Real Estate ("Ms. Stevenson"), Marshal Brian Hobart, ("Marshal Hobart") and Select Portfolio Servicing and Safeguard Properties. Id. ¶ 3. Plaintiff claims Attorney Cheverko instructed these individuals to eject Mr. Vossbrinck from the foreclosed premises. Id.

On or about October 2, 2012, Marshal Hobart appeared at Plaintiff's house, and instructed him to collect his belongings within an hour and vacate the premises. Id. ¶ 4–5. Marshal Hobart and Officer Tierney of the Southbury Police Department instructed Mr. Vossbrinck he could not return under any circumstances. Id. ¶ 4–5. Attorneys Julie Beth Vacek and Dorothy Davis, both of Eckert Seamans, were present during the ejectment. Id. ¶ 5. The ejectment lasted about five days and Mr. Vossbrinck vacated the premises by the end of the week. Id. ¶ 6.

The Complaint alleges Plaintiff did not remove all of his belongings from the premises at the time he vacated, and among the items he left were photographs, a commercial range, a washing machine and dryer, a full kitchen in two downstairs guest apartments, and a wood burning stove. Id. ¶ 16. Plaintiff's Objection to the Motion to Dismiss includes photographs of some of the belongings he left behind. [Dkt. 13–1 (Opp'n Ex. 1, Photographs) ]. Those photographs depict the two kitchens which appear to be installed on the premises, an exercise machine, cord wood, two metal shelf systems containing cleaning products and other assorted consumer items, a furnace, a hot water heater, and an oil tank. Id. Also depicted is a storage tent located on the grounds of the premises constructed on a concrete block linear foundation. Id. Under the tent was a pallet, a milk crate, and assorted items lying in disarray on the bare ground. Mr. Vossbrinck alleges the intrinsic or replacement value of Plaintiff's belongings remaining after the ejectment "was in excess of $200,000." [Dkt. 1–1 ¶ 18].

Plaintiff subsequently learned that Marshal Hobart had not properly stored Plaintiff's belongings in a town facility, as mandated by Conn. Gen. Stat. § 49–22, but rather in several different locations. Id. ¶ 7. Marshal Hobart also failed to notify the police and Plaintiff where he was taking Plaintiff's belongings as required by law and did not provide Plaintiff with an inventory or the location of his belongings. Id. ¶¶ 8, 10.

Over a period of three weeks, Plaintiff contacted Marshal Hobart, Attorney Cheverko, and Ms. Stevenson and they "refused to tell Plaintiff where his belongings were" located. Id. ¶ 11. Plaintiff ultimately learned where his belongings were located, but he discovered many items were missing when he retrieved them. Id. ¶¶ 12–13. One month following Plaintiff's October 2012 ejectment, Plaintiff learned that Marshal Hobart left approximately half of Plaintiff's belongings at the premises. Id. ¶ 14. Plaintiff did not demand his property, but rather left his belongings on the premises, assuming they would be secure while he appealed the foreclosure and his friend was residing in an apartment on the premises. Id.

Mr. Vossbrinck left his property on the premises for two more years until "the second quarter of 2014" at which point Attorney Cheverko "had the remaining entirety of Plaintiff's personal property removed from all exterior areas of Plaintiff's home and liquidated ... without any notification to Plaintiff whatsoever." Id. ¶ 15. He alleges this liquidation took place without a court order and while a lis pendens existed on his property. Id.

Mr. Vossbrinck alleges that on June 6, 2014, Ms. Stevenson listed Plaintiff's belongings for sale for $363,600.00, at which time Plaintiff's belongings described above were on the premises. Id. ¶ 16. After the premise was listed for sale, "upon Geraldine Cheverko's instructions, the entire inside contents of Plaintiff's home were removed." Id. ¶17. Plaintiff admits in his Complaint that "[t]hese items would normally be left in a house listed for sale." Id.

II. Legal Standard

To survive a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a motion to dismiss for failure to state a claim, the Court should follow a "two-pronged approach" to evaluate the sufficiency of the complaint. Hayden v. Paterson , 594 F.3d 150, 161 (2d Cir. 2010). "A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’ " Id. (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). "At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’ " Id. (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (internal quotations omitted).

In general, the Court's review on a motion to dismiss pursuant to Rule 12(b)(6)"is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated by reference." McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 191 (2d Cir. 2007). The Court may also consider "matters of which judicial notice may be taken" and "documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. Am. Film Techs., Inc. , 987 F.2d 142, 150 (2d Cir. 1993) ; Patrowicz v. Transamerica HomeFirst, Inc. , 359 F.Supp.2d 140, 144 (D. Conn. 2005).

"A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp , 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus , 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ). The Court interprets a pro se complaint to raise the strongest arguments that it suggests. Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994).

III. Analysis

Defendants move to dismiss this case in its entirety on the basis that all claims are time-barred and otherwise fail to state a claim upon which relief may be granted. Plaintiff withdraws his claims for replevin and deprivation of rights under 42 U.S.C. § 1983. See [Dkt. 13 at 6]. Plaintiff argues the claims for conversion and civil theft were timely filed because the conduct occurred after ejectment when Plaintiff's goods were liquidated. The Court will now address Defendant's liability for the ejectment, the statute of limitations issue, and the allegations of pleadings.

A. Defendant's Liability for the Ejectment

As an initial matter, Plaintiff has not properly alleged Defendant is liable for his ejectment in October 2012. On June 21, 2011, the state court issued a judgment of strict foreclosure and designated the law day as August 23, 2011. [Dkt. 1–1 ¶ 1]. When...