Opinion
CV166031849S
11-21-2016
Susan Devine v. Nationstar Mortgage, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (121.00)
PETER EMMETT WIESE, JUDGE.
I
Procedural History
In an amended complaint dated March 11, 2016, the plaintiff, Susan Devine, avers twelve counts against the defendants, Nationstar Mortgage, LLC (Nationstar) and Safeguard Properties Management, LLC (Safeguard). The complaint alleges the following facts. The plaintiff is the record owner of real property located at 371 Emmett Street, Unit 90, in Bristol, Connecticut. Nationstar is the successor in interest to the plaintiff's mortgage loan lender and is the plaintiff's mortgage loan owner and/or servicer. On December 23, 2014, the defendants broke into the plaintiff's property, shut down the water and plumbing systems, and changed the lock on the front door. The plaintiff avers six causes of action against Nationstar sounding in breach of contract, negligence, breach of the implied covenant of good faith and fair dealing, trespass, conversion, and violation of the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiff avers the same causes of action against Safeguard in counts seven through twelve. As a result of the defendants' actions, the plaintiff has allegedly incurred repair expenses, loss of rental income and other monetary damages, and suffered embarrassment and humiliation.
On May 2, 2016, Nationstar filed a motion to strike the first, second, third, fifth and sixth counts of the amended complaint (121.00). The plaintiff filed an objection on May 31, 2016 (125.00). The parties presented oral argument at short calendar on August 8, 2016.
Parties' Arguments
In its motion, Nationstar argues that the plaintiff failed to allege an agreement existed between the parties; therefore, the first count fails to sufficiently establish a breach of contract claim. The plaintiff also failed to allege the existence of a duty and a breach of that duty, thus the second count fails to establish a negligence claim. As to the third count, the defendant argues that the plaintiff failed to allege bad faith, a necessary requirement for a breach of the implied covenant of good faith and fair dealing. As to the fifth count, the defendant asserts that the plaintiff failed to allege unauthorized conduct and a deprivation of property in order to claim conversion. Lastly, the defendant asserts the CUTPA claim fails because it does not meet the three prongs of the " cigarette rule."
In her objection, the plaintiff contends that the allegation of a mortgage between the parties satisfies the breach of contract and negligence claims. Furthermore, the allegations that the plaintiff was deprived possession and denied access to her property satisfies a claim of conversion. Lastly, the plaintiff's complaint sufficiently states the three criteria of the cigarette rule for a CUTPA violation.
II
DISCUSSION
A. Motion to Strike--Applicable Law
" 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). " [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
B. Analysis
First Count--Breach of Contract
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). A mortgage contract is a contract and as such is governed by contract law. CHFA v. John Fitch Court Associates Ltd. Partnership, 49 Conn.App. 142, 149, 713 A.2d 900, cert. denied, 247 Conn. 908, 719 A.2d 901 (1998).
In the first count, the plaintiff alleges that the defendant became the owner and/or servicer of the plaintiff's mortgage loan. The plaintiff further alleges that she performed all her obligations under the contract and that the defendant breached the agreement, causing damages. Construing the pleadings broadly and realistically, the plaintiff has sufficiently alleged a breach of contract claim.
Second Count--Negligence
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002). " Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Internal quotation marks omitted.) Cannizzaro v. Marinyak, 312 Conn. 361, 366, 93 A.3d 584 (2014). " The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court." Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 137, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).
" It is well settled . . . that [g]enerally there exists no fiduciary relationship merely by virtue of a borrower-lender relationship between a bank and its customer." (Internal quotation marks omitted.) Saint Bernard School of Montville, Inc. v. Bank of America, 312 Conn. 811, 836, 95 A.3d 1063 (2014). See also Connecticut Community Bank, N.A. v. Strickland Road, LLC, Superior Court, judicial district of Danbury, Docket No. CV-12-6008381-S, (December 4, 2014, Shaban, J.).
Additionally, the court in Blanco v. Bank of America, N.A., Superior Court, judicial district of Hartford, Docket No. CV-15-6060162-S (April 19, 2016, Dubay, J.) [62 Conn.L.Rptr. 190, ], further determined that no common-law duty of care exists between a lender and a borrower. In Blanco, the plaintiff, a mortgagor, filed a negligence claim against the defendant, his lender and loan service provider. The court granted the defendant's motion to strike the negligence claim; under its well-reasoned analysis, no duty of care exists between a lender and borrower relationship for public policy reasons. Id.
In the present matter, the second count states that the defendant was negligent and careless for numerous reasons, including: not undertaking a reasonable investigation to determine whether the plaintiff's condominium was abandoned, charging the plaintiff's mortgage account for the unlawful break-in, giving the plaintiff incorrect information on the status of her loan and payments, failing to hire an appropriate inspection company and locksmith, and by failing to adequately repair the door after it was damaged. However, the complaint does not contain any allegation of a duty between the parties. Accordingly, the claim of negligence in the second count is insufficiently stated as a matter of law.
Third Count--Breach of the Implied Covenant of Good Faith and Fair Dealing
" [A] plaintiff cannot state a claim for breach of the implied covenant simply by alleging a breach of the contract, in and of itself . . . Instead, to state a legally sufficient claim for breach of the implied covenant sounding in contract, the plaintiff must allege that the defendant acted in bad faith . . . If the plaintiff fails to set forth factual allegations that the defendant acted in bad faith, a claim for breach of the implied covenant will not lie." (Internal quotation marks omitted.) TD Bank, N.A. v. J& M Holdings, LLC, 143 Conn.App. 340, 349, 70 A.3d 156 (2013). " Bad faith means more than mere negligence; it involves a dishonest purpose . . . Bad faith in general implies both 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." (Internal quotation marks omitted.) Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 576-77, 845 A.2d 417 (2004). In the present matter, the four corners of the third count does not contain allegations of bad faith, deceit or fraud, or that the defendant acted by some interested or sinister motive. See Garrity v. Indianapolis Life Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-02-0282551-S, (March 10, 2003, Wiese, J.).
Fifth Count--Conversion
" The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006). " To establish a prima facie case of conversion, the plaintiff had to demonstrate that (1) the material at issue belonged to the plaintiff, (2) that [the defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [the defendant's] conduct was unauthorized and (4) that [the defendant's] conduct harmed the plaintiff." News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 545, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005).
The fifth count alleges that the defendant, without authorization, entered her property and changed the front door lock, thereby denying access to her real property. This court finds that conversion is not applicable to real property. Hartlin v. Cody, 144 Conn. 499, 508, 134 A.2d 245 (1957) (" [w]rongful conversion can apply only to personal property" [internal quotation marks omitted]). See also Rustici v. Malloy, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-97-0 164460-S, (July 1, 2004, Schuman, J.); Ventres v. Goodspeed Airport, Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV-01-0076812-S (May 21, 2004, Sferrazza, J.) (37 Conn.L.Rptr. 197, ), aff'd, 275 Conn. 105, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006). Accordingly, this count is legally insufficient.
Sixth Count--CUTPA
General Statutes § 42-110b(a) states: " [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." " It is well settled that in determining whether a practice violates CUTPA we 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--whether, 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 businessmen]." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 695, 804 A.2d 823 (2002). " 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." Id., 695-96.
" [S]uperior courts have permitted a CUTPA cause of action based on a breach of contract [when] there generally has been some type of fraudulent behavior accompanying the breach or aggravating circumstances . . . The question therefore becomes whether the plaintiff has alleged in its complaint the substantial aggravating circumstances attending the breach of contract necessary to establish a CUTPA violation . . . Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims . . . and multiple breaches of contract . . . A simple contract breach is not sufficient to establish a violation of CUTPA . . . where a count simply incorporates by reference the breach of contract claim and does not set forth how or in what respect the defendant's activities are either, immoral, unethical, unscrupulous, or offensive to public policy." (Citations omitted; internal quotation marks omitted.) Eclipse Systems, Inc. v. Harrell, Superior Court, judicial district of Middlesex, Docket No. CV-10-6003857-S, (May 25, 2011, Wiese, J.).
In the sixth count, the plaintiff incorporates the first ten paragraphs of the first count. The plaintiff additionally alleges in paragraph 11 that the defendant failed to keep accurate mortgage payment records and demanded payment for already made payments. Such actions, the plaintiff alleges, " were immoral, oppressive and unscrupulous and caused substantial injury." The sixth count includes allegations of substantial aggravating circumstances beyond a breach of contract claim, such as fraudulent representations and false claims. Accordingly, the plaintiff has sufficiently alleged a CUTPA violation.
III
CONCLUSION
For the stated reasons, the motion to strike is denied, in part, as to the first breach of contract and sixth CUTPA counts. The motion to strike is granted, in part, as to the second negligence, third implied covenant of good faith and fair dealing and fifth conversion counts.
SO ORDERED.