Costello v. Wells Fargo Bank

• Decision Date: 03 June 2022
• Docket Number: 3:21-cv-01388 (VAB)
• Parties: JAMES T. COSTELLO, Plaintiff, v. WELLS FARGO BANK NA et al., Defendants.
• Court: U.S. District Court — District of Connecticut

JAMES T. COSTELLO, Plaintiff, v. WELLS FARGO BANK NA et al., Defendants.

No. 3:21-cv-01388 (VAB)

United States District Court, D. Connecticut

June 3, 2022

RULING AND ORDER ON MOTIONS TO DISMISS

Victor A. Bolden United States District Judge

James T. Costello has sued Wells Fargo Bank, NA (“Wells Fargo”); Nationstar Mortgage LLC doing business as Mr. Cooper (“Nationstar”); U.S. Bank Trust NA (“US Bank”); Milford Law LLC doing business as Kapusta, Otzel & Averaimo also known as Barton Gilman LLP (“Milford Law”); Paul Lewis Otzel; Cooke Law LLC; Crystal Lyn Cooke; McCalla Raymer Liebert Pierce LLC; Linda Jane St. Pierre; Victoria Lynn Forcella; Lynwood Condominium Association Inc. (“Lynwood Condominium”); Pilicy & Ryan PC also known as Franklin G Pilicy PC; Franklin G Pilicy; Charles A. Ryan; and Jillian A. Judd (collectively “Defendants”) for alleged violations of various state and federal laws arising from a foreclosure action in Waterbury, Connecticut.

Defendants have moved to dismiss on the basis of lack of subject matter jurisdiction, or, in the alternative, for failure to state a claim upon which relief can be granted. See Mot. to Dismiss, ECF No. 25 (Nov. 17, 2021) (Crystal Lyn Cooke and Cooke Law LLC motion to dismiss); Wells Fargo Bank N.A.'s Mot. to Dismiss, ECF No. 57 (Dec. 8, 2021) (Wells Fargo motion to dismiss); Mot. to Dismiss of Defs. Milford Law/Barton Gilman/Otzel, ECF No. 67 (Dec. 16, 2021) (Milford Law and Paul Lewis Otzel motion to dismiss); Defs.' Mot to Dismiss, ECF No. 72 (Dec. 17, 2021) (Franklin Pilicy, Jillian Judd, Pilicy & Ryan PC, and Charles A. Ryan motion to dismiss); Mot. to Dismiss by Lynwood Condominium Association, ECF No. 74 (Dec. 18, 2021) (Lynwood Condominium motion to dismiss); Mot. to Dismiss Pl.'s Compl., ECF No. 87 (Dec. 29, 2021) (Nationstar motion to dismiss); Mot. to Dismiss Pl.'s Compl., ECF No. 90 (Dec. 29, 2021) (Victoria Lynn Forcella, McCalla Raymer Liberty Pierce LLC, and Lind Jane St. Pierre motion to dismiss); U.S. Bank Trust, N.A., Not in its Individual Capacity, but Solely as Owner Trustee for VRMTG Trust's Mot. to Dismiss Pl.'s Compl., ECF No. 93 (Jan. 7, 2022) (US Bank motion to dismiss).

For the reasons explained below, the [25], [57], [67], [72], [74], [87], [90], and [93]motions to dismiss are GRANTED.

I. BACKGROUND

A. Factual Background

On or about September 12, 2003, Mr. Costello “executed a mortgage on 335 Perkins Avenue, Unit 7, Waterbury, Connecticut (real property)[, ]” (the “Property”), Compl. ¶ 34, a mortgage allegedly secured by a promissory note with Wells Fargo, id. ¶ 35.

Until on or around May of 2014, Mr. Costello allegedly made continuous payments according to the terms of the mortgage. Id. ¶ 37. Thereafter, on July 24, 2014, Mr. Costello filed a voluntary petition for bankruptcy under Chapter 7 (“Petition”) in the United States Bankruptcy Court for the District of Connecticut. Id. ¶ 38; see also In re Costello, No. 14-BK-51156 (Bankr. D. Conn. filed July 24, 2014).^[1] On October 8, 2015, Wells Fargo commenced a foreclosure action on the mortgage (“First Foreclosure Action”).^[2] See Wells Fargo Bank, N.A. v. Costello et al., No. UWY-CV15-6028725-S (Conn. Super. Ct. filed Oct. 19, 2015). The foreclosure action was later dismissed. Id.; see also Compl. ¶¶ 48-51.

On November 6, 2018, Nationstar commenced a second foreclosure action against Mr. Costello (“Second Foreclosure Action”). Nationstar Mortgage LLC v. James T. Costello et al., No. UWY-CV18-6044642-S (Conn. Super. Ct. filed Nov. 26, 2018). On January 18, 2019, the clerk entered a default against Mr. Costello in that case for failure to plead. See id. The Second Foreclosure Action remains pending.

B. Procedural Background

On December 19, 2021, Mr. Costello filed this Complaint pro se in federal court, alleging nine counts: (1) civil contempt under 11 U.S.C. § 524 (“Count One”); (2) civil contempt under Connecticut General Statutes § 47-36(f) (“Count Two”); (3) civil contempt under 12 U.S.C. § 4617(j)(1)(3) (“Count Three”); (4) civil contempt under Connecticut General Statutes § 49-31s(b)(3) (“Count Four”); (5) abuse of process under Connecticut General Statutes § 49-10 (“Count Five”); (6) abuse of process under Connecticut General Statutes § 49-51 (“Count Six”); (7) abuse of process under Connecticut General Statutes § 21-210 (“Count Seven”); (8) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 (“Count Eight”); and (9) violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), Connecticut General Statutes § 42-110a (“Count Nine”). Compl. In addition, throughout the Complaint, Mr. Costello alleges violation of his federal constitutional and statutory rights under 42 U.S.C. § 1983. See, e.g., id. ¶¶ 1, 6.

On November 17, 2021, Crystal Lyn Cooke and Cooke Law LLC filed a motion to dismiss on the basis of: (1) litigation privilege; (2) failure to state a claim against Cooke Law LLC and under 42 U.S.C. § 1983; (3) failure to state a claim of “civil contempt, ” as to Counts One through Four; (4) failure to state a claim of abuse of process, as to Count Five; (5) failure to state a claim, as to Count Six; (6) failure to state a claim under the FDCPA, including as to the statute of limitations, as relevant to Count Eight; and (7) lack of standing as to the CUTPA claim in Count Nine. See Mot. to Dismiss, ECF No. 25 (Nov. 17, 2021); Mem. of Law in Supp. of Mot. to Dismiss, ECF No. 25-1 (Nov. 17, 2021) (“First Mot. to Dismiss”). Mr. Costello opposed this motion. See Pl.'s Mem. of Law in Opp'n to Def.'s Cooke Law LLC formerly known as Sandelands Eyet LLP and Crystal Lynn Cooke's Mot. to Dismiss, ECF No. 95 (Jan. 7, 2022) (“First Obj.”).

On December 8, 2021, Wells Fargo filed a second motion to dismiss, on the basis that Mr. Costello's claims against Wells Fargo: (1) fail to meet minimum pleading standards, including alleging the requisite personal involvement; (2) are barred by res judicata and collateral estoppel; (3) are precluded by the litigation privilege; and (4) fail to provide a factual basis upon which relief can be granted. See Wells Fargo Bank, N.A.'s Mot. to Dismiss, ECF No. 57 (Dec. 8, 2021); Wells Fargo Bank N.A.'s Mem. of Law in Supp. of its Mot. to Dismiss, ECF No. 58 (Dec. 8, 2021) (“Second Mot. to Dismiss”). Mr. Costello opposed this motion. See Pl.'s Mem. of Law in Supp. of Obj. to Defs.' Mot. to Dismiss (ECF No. 57), ECF No. 117 (Feb. 19, 2022) (“Second Obj.”). On March 3, 2022, Wells Fargo filed a reply. See Reply in Supp. of Wells Fargo Bank, N.A.'s Mot. to Dismiss, ECF No. 125 (Mar. 3, 2022).

On December 16, 2021, Milford Law and Paul Lewis Otzel filed a third motion to dismiss, on the basis of: (1) litigation privilege; (2) failure to state a cause of action under 42 U.S.C. § 1983; (3) failure to state a cause of action for civil contempt; (4) failure to state a claim for abuse of process; (5) failure to state a claim under the FDCPA; and (6) failure to state a claim under CUTPA. See Mot. to Dismiss of Defs. Milford Law/Barton Gilman/Otzel ECF No. 67 (Dec. 16, 2021); Mem. in Supp., ECF No. 68 (Dec. 16, 2021) (“Third Mot. to Dismiss”). Mr. Costello opposed this motion. See Pl.'s Mem. of Law in Supp. of Obj. to Defs.' Mot. to Dismiss (ECF 67), ECF No. 106 (Feb. 7, 2022) (“Third Obj.”). On February 21, 2022, Milford Law and Paul Lewis Otzel filed a reply. See Reply Mem. of Law in Supp. of Mot. to Dismiss, ECF No. 120 (Feb. 21, 2022).

On December 17, 2021, Franklin Pilicy, Jillian A. Judd, Pilicy & Ryan PC, and Charles A. Ryan filed a fourth motion to dismiss, arguing that Mr. Costello's claim should be dismissed where: (1) the Complaint fails to state a claim under Section 1983 because Section 1983 only applies to state actors and Mr. Costello has not, and cannot, allege that any of the Defendants are, or were, state actors; (2) there is no independent cause of action for civil contempt; (3) several statutes relied on by Mr. Costello, including 11 U.S.C. § 524, Conn. Gen. Stat. § 47-36f, and 12 U.S.C. § 4617(j)(1)(3), do not provide for private rights of action; (4) the abuse of process claim in Count Seven does not state a viable, private right of action; (5) the FDCPA claim does not sufficiently allege what provisions of the FDCPA Defendants purportedly violated or how they allegedly violated them, and (6) lack of standing to bring CUTPA claims against Defendants who were attorneys for Mr. Costello's adversary. See Defs.' Mot. to Dismiss, ECF No. 72 (Dec. 17, 2021); Mem. of Law in Supp. of Defs.' Mot. to Dismiss, ECF No. 72-1 (Dec. 17, 2021) (“Fourth Mot. to Dismiss”). Mr. Costello opposed this motion. See Pl.'s Mem. of Law in Supp. of Obj. to Defs.' Mot. to Dismiss, ECF No. 113 (Feb. 10, 2022) (“Fourth and Fifth Obj.”).

On December 18, 2021, Lynwood Condominium Association filed a fifth motion to dismiss, on the basis of: (1) Colorado River abstention; and (2) failure to state a claim upon which relief can be granted as to the civil contempt, abuse of process, FDCPA and CUTPA claims. See Mot. to Dismiss by Lynwood Condominium Association, ECF No. 74 (Dec. 18, 2021); Mem. in Supp. of Mot. to Dismiss by Lynwood Condominium Association, ECF No. 741 (Dec. 18, 2021) (“Fifth Mot. to Dismiss”). Mr. Costello opposed the motion. See Fourth and Fifth Obj. On February 21, 2022, Lynwood Condominium filed a reply. See Reply to Opp'n to Mot. to Dismiss by Lynwood Condominium Association, ECF No. 119 (Feb. 21, 2022).

On December 29, 2021, Nationstar filed a sixth motion to dismiss, on the basis of: (1) Younger and Colorado River abstention; (2) lack of subject matter jurisdiction under Rooker-Feldman; (3) lack of federal question jurisdiction under 29 U.S.C. § 1447(c); and (4) all additional reasons previously advanced by Wells Fargo. S...