Kurimsky v. Resi Whole Loan IV, LLC (In re Kurimsky)
| Decision Date | 20 September 2021 |
| Docket Number | 21-50021,ADV. PRO. 21-5001 |
| Court | United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — District of Connecticut |
| Parties | IN RE: GARY F. KURIMSKY, Debtor. v. RESI WHOLE LOAN IV, LLC, AVAIL-1, LLC, AND INVESCO MORTGAGE RECOVERY MASTER ASSOCIATES LLC, Defendants. GARY F. KURIMSKY, Plaintiff, RE: ECF No. 62 |
Gary F. Kurimsky
Pro se Plaintiff
Linda St. Pierre, Esq.
McCalla Raymer Leibert Pierce, LLC
Attorney for the Defendant Avail-1, LLC
Gary F. Kurimsky (the "Plaintiff"), proceeding pro se, commenced this adversary proceeding by filing a complaint on January 15, 2021, which was amended on March 25, 2021 (the "Amended Complaint"). The Amended Complaint names Resi Whole Loan IV, LLC ("Resi") and Avail-1, LLC ("Avail-1, LLC") as defendants[1] and seeks relief on two-counts. Count I alleges the defendants engaged in unfair business practices in violation of the Connecticut Unfair Insurance Practice Act (CUIPA), section 38(a)-816, and 11(a)(iv) which resulted in the tortious conveyance of the Plaintiff's rights in the real property located at 268 Hammertown Road, Monroe, Connecticut (the "Property"). Count II alleges the defendants engaged in misrepresentation, misconduct and fraud "pursuant to all applicable law" [sic] in connection with the Property.
On July 27, 2021, Avail-1, LLC filed a Motion to Dismiss Adversary Proceeding (the "Motion to Dismiss," ECF No. 62) pursuant to Fed.R.Civ.P. 12(b)(1) and (6). The Motion to Dismiss asserts that the Court lacks jurisdiction over the Plaintiff's claims by application of the doctrines of res judicata, collateral estoppel, and Rooker-Feldman in connection with a Judgment of Strict Foreclosure entered against the Plaintiff in the Connecticut Superior Court. See CitiMortgage Inc. v. Paulette Kurimsky, et al., Docket No. FBT-CV09-6003098-S (the "State Court Action"). Additionally, the Motion to Dismiss asserts the Amended Complaint fails to state a claim upon which relief can be granted because the Plaintiff lacks standing to pursue the claims. The deadline for the Plaintiff to file a response to the Motion to Dismiss was August 17, 2021. No response was filed by the Plaintiff on or before the deadline.
After careful consideration of the Motion to Dismiss, and for the reasons that follow, the Motion to Dismiss is granted.
The United States District Court for the District of Connecticut has jurisdiction over the instant proceeding pursuant to 28 U.S.C. § 1334(b). The Bankruptcy Court derives its authority to hear and determine this matter pursuant to 28 U.S.C. §§ 157(a) and (b)(1) and the District Court's General Order of Reference dated September 21, 1984. This is a "core proceeding" pursuant to 28 U.S.C. § 157(b)(2)(A).
For purposes of the Motion to Dismiss, the Court accepts all the facts alleged in the Amended Complaint as true. The following facts are set forth in the Motion to Dismiss, and the Court takes judicial notice of those facts:[2]
1. On August 28, 2007, the Plaintiff executed a promissory note (the "Note") in favor of CitiMortgage, Inc. in the original principal amount of $650, 000.00. The Note was secured by a mortgage recorded against the Property (the "Mortgage").
2. On June 2, 2009, CitiMortgage, Inc. commenced the State Court Action against the Plaintiff and his wife in the Connecticut Superior Court to, among other things, foreclose the Mortgage. See CitiMortgage Inc. v. Paulette Kurimsky, et al., Docket No. FBT-CV09-6003098-S.
3. On September 6, 2011, a judgment of strict foreclosure entered in the State Court Action setting a law day of January 10, 2012 (the "Judgment"). The Judgment found that (i) CitiMortgage, Inc. was the holder and owner of the Note; (ii) the Debtor was in default of the terms of the Note; (iii) the fair market value of the Property was $552, 000.00; and (iv) the debt owed to CitiMortgage, Inc. was $808, 790.87.[3]
4. On June 5, 2015, the Plaintiff commenced a civil action in the United States District Court for the District of Connecticut against, among others, CitiMortgage, Inc., Resi, and Greenwich Investors XLIII Trust 2013-1, [4] seeking injunctive relief for denial of rights under color of law for violations of 42 U.S.C. §§ 1983, 1985, and 1986, as well as for violations of the criminal code pursuant to 18 U.S.C. §§ 241 and 242. See Gary Kurimsky v. CitiMortgage, Inc., et al., 15-CV-00866-MPS. The nine-count Complaint alleged, among other things, that the defendants violated the Plaintiff's constitutionally protected right to property by "bifurcating" the Note and Mortgage and fraudulently converted the Property by foreclosing on the Note, and not the Mortgage, which the Plaintiff asserted they lacked the right to do, thereby rendering the Mortgage unenforceable. The District Court dismissed the Plaintiff's case on May 16, 2016, holding that "[b]ecause Mr. Kurimsky abandoned his claims to his bankruptcy estate, he lacks standing to bring this suit and [the Court] therefore lack[s] jurisdiction." See Ruling and Order at 1, Gary Kurimsky v. CitiMortgage, Inc., et al., 15-CV-00866-MPS (ECF No. 51, May 12, 2016).
5. On May 30, 2017, an order entered in the State Court Action granting a motion to substitute Avail-1, LLC for Greenwich Investors as the successor in interest to CitiMortgage, Inc.
6. On September 14, 2017, the Plaintiff filed a second appeal of the Judgment in the Connecticut Appellate Court. On November 6, 2018, the Appellate Court affirmed the Judgment and remanded the matter for the purpose of setting a new law day. On March 19, 2019, the Superior Court set a new law day of May 21, 2019.
7. On May 20, 2019, the Plaintiff's wife filed a Chapter 7 petition. On September 13, 2019, Avail-1, LLC's Motion for Relief from Stay was granted under section 362(d)(1), which annulled the stay to May 20, 2019, the date of the filing of the petition.
8. After the entry of the Order Granting Relief from Stay, title vested with Avail-1, LLC.
9. On September 16, 2019, the Plaintiff's wife's bankruptcy case was dismissed for failure to pay the filing fee.
10. On April 10, 2020, the Governor of the State of Connecticut issued Executive Order No. 7X, which suspended evictions in the State of Connecticut. Subsequent Executive Orders by the Governor of the State of Connecticut further extended the moratorium on evictions. On September 4, 2020, the Centers for Disease Control and Prevention issued an agency order pursuant to 42 U.S.C. § 264 and 42 C.F.R. § 70.2, Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19, 85 Fed.Reg. 55292 (Sept. 4, 2020) (the "CDC Order"). The CDC Order barred the eviction of persons covered by the CDC Order through December 31, 2020.
11. On October 2, 2020, the Superior Court entered an order staying the Summary Process Execution for Possession (Eviction) against the Plaintiff, Plaintiff's wife, and the Plaintiff's son through December 31, 2020, after rejecting the Plaintiff's argument that the CDC Order applied to him and his family.
12. On January 5, 2021, after the stay of execution had expired, Avail-1, LLC filed a Summary Process Execution for Possession (Eviction). On January 14, 2021, the Plaintiff filed his Chapter 7 case (Case No. 21-50021), and then commenced this adversary proceeding.
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, made applicable in this adversary proceeding through Federal Rule of Bankruptcy Procedure 7012(b), challenges the court's subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1); Fed.R.Bankr.P. 7012(b). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) 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). When resolving a motion to dismiss for lack of subject matter jurisdiction, the court "may refer to evidence outside the pleadings." See id.; see also Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (). In addition, the court may also consider "matters of which judicial notice may be taken" when reviewing a motion to dismiss under Rule 12(b)(1). Hylton v. J.P. Morgan Chase Bank, N.A., 338 F.Supp.3d 263, 272-73 (S.D.N.Y. 2018) (citation omitted) ("An argument that the court does not have subject matter jurisdiction pursuant to the Rooker-Feldman doctrine is properly considered under Rule 12(b)(1)."). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova, 201 F.3d. at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996)).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, made applicable in this adversary proceeding through Bankruptcy Rule 7012(b), asserts that a plaintiff has failed to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6); Fed.R.Bankr.P 7012(b). To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a pleading must contain a short, plain statement of the claim showing the pleader is entitled to relief, see Fed. R. Civ. P. 8(a)(2), and a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face," see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 570 (2007)). A pleading cannot merely recite the...
To continue reading
Request your trial