Nelson v. Wells Fargo Bank, N.A.
| Decision Date | 18 June 2019 |
| Docket Number | 17-cv-4045 (LAP) |
| Parties | MOSES NELSON, Plaintiff, v. WELLS FARGO BANK, N.A., U.S. Bank, N.A., AS TRUSTEE FOR BANK OF AMERICA FUNDING 2007-1 TRUST, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Before the Court are Plaintiff Moses Nelson's ("Plaintiff" or "Nelson") Motion to Strike Defendant(s) Reply Memorandum Pursuant to FRCP Rule 9(b) and 12(f) ("Plaintiff's Motion"), dated Nov. 6, 2018 [dkt. no. 40] and Defendants Wells Fargo Bank, N.A. ("Wells Fargo") and U.S. Bank, N.A., as Trustee for Bank of America Funding 2007-1 Trust's ("U.S. Bank") (collectively, "Defendants") Motion to Dismiss for Improper Venue, or in the Alternative to Transfer ("Defendants' Motion"), dated Aug. 30, 2019 [dkt. no. 33].
For the reasons stated below, Plaintiff's Motion [dkt. no. 40] is denied and Defendants' Motion [dkt. no. 33] is granted. Because venue is improper in this District, and because it is "in the interest of justice" to do so, this action is transferred to the District of Connecticut.
In September of 2013, U.S. Bank commenced a foreclosure action against Nelson, "styled U.S. Bank N.A. as Trustee v. Nelson, Moses, et al., Docket No. FBT-CV13-6038082-S (Conn. Super. Ct.)" in the State of Connecticut Superior Court, Judicial District of Fairfield at Bridgeport ("Connecticut Superior Court"). (Memorandum of Law in Support of Defendants' Motion to Dismiss for Improper Venue, or in the Alternative to Transfer ( ), dated Aug. 30, 2018 [dkt. no. 34], 2; see Declaration of William Lugo in Support of Defendants' Motion to Dismiss for Improper Venue, or in the Alternative to Transfer ("Lugo Decl."), dated Aug. 30, 2018 [dkt. no. 35], 4-8 (Exhibit A).) U.S. Bank sought to foreclose Nelson's property known as 1584-1586 North Avenue, Bridgeport, Connecticut (the "Property").1 (Id. at 9-16 (Exhibit B).)
On June 29, 2015, U.S. Bank obtained a Judgment of Strict Foreclosure (the "Foreclosure Judgment"). (Id. at 17-19 (Exhibit C).) The Foreclosure Judgment set "[a] law day [of] August 18, 2015 for" Nelson, "the owner of the equity of redemption with the law days of the subsequent encumbrances assigned in the inverse order of priorities." (Id. at 18 (Exhibit C).)
On August 18, 2015, Nelson filed a "Motion to Open Judgment (Civil Matters Other Than Small Claims and Housing Matters)" (the "2015 Motion to Open Judgment"), claiming that he had released his attorney from representing him and had just learned about his law day. (Id. at 20-22 (Exhibit D).) On September 3, 2015, U.S. Bank filed an objection to Nelson's 2015 Motion to Open Judgment, in which it asserted that, because title to the Property vested in U.S. Bank on August 20, 2015, the Connecticut Superior Court did not have authority to open the Foreclosure Judgment at Nelson's request. (Id. at 23-26 (Exhibit E).) On September 21, 2015, the Connecticut Superior Court dismissed Nelson's 2015 Motion to Open Judgment for lack of jurisdiction. (Id. at 27-28 (Exhibit F).)
On September 30, 2015, Nelson filed a "Motion for Waiver and Subject Matter Jurisdiction" requesting that the Connecticut Superior Court "[v]acate and [v]oid" the Foreclosure Judgment and claiming that he could "unequivocally prove that the Original Lender, AMERICAN BROKERS CONDUIT, did not exist as a legitimate Corporation to do business in the State of Connecticut when they contracted with" him "to create the Mortgage and Promissory Note" (the "Mortgage Loan") for the Property. (Id. at 31-57 (Exhibit H).) On November 18, 2015, the Connecticut Superior Court denied Nelson's motion. (Id. at 58-59 (Exhibit I).)
On December 1, 2015, Nelson filed an appeal. (Id. at 7 (Exhibit A).) On May 9, 2017, the Connecticut Appellate Court issued a per curiam opinion affirming the Foreclosure Judgment. (Id. at 60-61 (Exhibit J).)
On May 10, 2017, Nelson filed a petition for certification to the Connecticut Supreme Court. (Id. at 62-96 (Exhibit K).) On June 14, 2017, the Connecticut Supreme Court denied Nelson's petition. (Id. at 97-98 (Exhibit L).)
Meanwhile, on September 12, 2014, Nelson filed an action against American Broker's Conduit, Stewart Title Guaranty Company, Mortgage Electronic Registration Systems, Inc. ("MERS"), and U.S. Bank (collectively, the "2014 Connecticut Superior Court Defendants"), "styled Nelson v. American Brokers Conduit, et al., Docket No. FBT-CV14-5030232-S (Conn. Super. Ct.)" in the Connecticut Superior Court. (Defs.' Mot. Mem. at 3; See Lugo Decl. at 99-103 (Exhibit M).) In his "Complaint for Quiet Title," dated July 11, 2014, Nelson sought to sue the 2014 Connecticut Superior Court Defendants for allegedly engaging in "Unfair Business Practices," "misrepresentation, misconduct and fraud" and receiving "Unjust Enrichment" through their alleged actions regarding the Mortgage Loan. (Lugo Decl. at 104-129 (Exhibit N).) The 2014 Connecticut Superior Court Defendants filed motions to dismiss the action, (see id. at 101-102 (Exhibit M)), and on March 30, 2017, the Connecticut Superior Court entered a judgment of dismissal. (Id. at 130-131 (Exhibit 0).)
On April 3, 2018, Nelson filed a "Motion to Open Judgment (Civil Matters Other Than Small Claims and Housing Matters)" (the "2018 Motion to Open Judgment"), claiming that he had "proof that the Defendant does not have an equitable claim to my property because they did not exist as a lawful corporation to do business in Connecticut or New York." (Id. at 132-140 (Exhibit P).) On April 19, 2018, U.S. Bank and MERS filed an objection to Nelson's 2018 Motion to Open Judgment. (Id. at 141-149 (Exhibit Q).) On May 9, 2018, the Connecticut Superior Court denied Nelson's 2018 Motion to Open Judgment. (Id. at 150-151 (Exhibit R).) Nelson did not appeal. (See id. at 102 (Exhibit M).)
On August 19, 2015, Nelson filed a federal lawsuit against American Brokers Conduit, MERS, U.S. Bank, and Bendett & McHugh, P.C. (collectively, the "2015 District of Connecticut Defendants") in the United States District Court for the District of Connecticut. See Nelson v. American Brokers Conduit et al., No. 15-CV-1233(JAM) (D. Conn.). In his Complaint, Nelson alleged that the 2015 District of Connecticut Defendants were liable for violating his civil and constitutional rights and for wrongful foreclosure, fraudulent concealment, fraud in the inducement, fraud upon the court, mail fraud, abuse of process, and obstruction of justice. (Verified Complaint ("2015 District of Connecticut Complaint"), Nelson v. American Brokers Conduit, No. 15-CV-1233(JAM) (D. Conn.), dated Aug. 19, 2015 [dkt. no. 1], ¶¶ 82-146.) Nelson further alleged that the material facts related to the securitization of the Mortgage Loan were not disclosed to him. (Id. ¶¶ 15, 18, 38, 39, 50.) Nelson also claimed that the Mortgage Loan was void because the original mortgagee was MERS and not the original lender. (Id. ¶¶ 14, 16, 17, 25, 28, 29, 52.)
On April 19, 2016, Nelson filed a "Motion to Withdraw Verified Complaint" in which he moved to withdraw his 2015 District of Connecticut Complaint "without prejudice, until I am able to retain an attorney to represent me." (Motion to Withdraw Verified Complaint ("2015 District of Connecticut Withdraw Motion"), Nelson v. American Brokers Conduit, No. 15-CV-1233(JAM) (D. Conn.), dated Apr. 19, 2016 [dkt. no. 28], 1.) On April 20, 2016, the District Court of Connecticut granted Nelson's 2015 District of Connecticut Withdraw Motion. (Order, Nelson v. American Brokers Conduit, No. 15-CV-1233(JAM) (D. Conn.), dated Apr. 20, 2016 [dkt. no. 29].)
On June 9, 2016, Nelson filed a federal lawsuit against Wells Fargo, U.S. Bank, and 1-100 John Does (collectively, the "2016 Southern District of New York Defendants") in this Court. See Nelson v. Wells Fargo Bank, N.A., et al., No. 16-cv-4300 (LAP) (S.D.N.Y.). In his Complaint, Nelson alleged that American Brokers Conduit had underwritten the Mortgage Loan "without proper due diligence" and that U.S. Bank and Wells Fargo engaged in unfair and deceptive business practices by failing to grant him a loan modification. (Complaint ("2016 Southern District of New York Complaint"), Nelson v. Wells Fargo Bank, N.A., et al., No. 16-cv-4300 (LAP) (S.D.N.Y.), dated June 9, 2016 [dkt. no. 1], ¶¶ 8, 9.) Nelson also alleged that U.S. Bank failed to comply with New York trust laws regarding the acquisition, servicing, and transfer of the Mortgage Loan. (Id. ¶¶ 24-35).
On July 12, 2016, this Court issued to Nelson an Order to Show Cause as to why the action should not be transferred to the District of Connecticut. (Order to Show Cause ("July 2016 Order to Show Cause"), Nelson v. Wells Fargo Bank, N.A., et al., No. 16-cv-4300 (LAP) (S.D.N.Y.), dated July 12, 2016 [dkt. no. 4].) The July 2016 Order to Show Cause stated, in part:
the Court is inclined to transfer this case to the United States District Court for the District of Connecticut under 28 U.S.C. § 1404(a). [Nelson] is therefore directed to submit a brief statement addressing why this action should not be transferred to the United States District Court for the District of Connecticut . . . . [The 2016 Southern District of New York] Defendants may, within thirty days, submit statements addressing the question of venue for this action. If [Nelson] fails to respond within thirty days, the Court will transfer this matter to the District of Connecticut pursuant to § 1404(a).
(Id. at 3.)
On August 10, 2016, the 2016 Southern District of New York Defendants submitted a statement pursuant to this Court's invitation. (Letter, Nelson v. Wells Fargo Bank, N.A., et al., No. 16-cv-4300 (LAP) (S.D.N.Y.), dated Aug. 10, 2016 [dkt. no. 9].) Nelson failed to respond to the July 2016 Order to Show Cause.
On September 30, 2016, this Court issued a second Order to Show Cause to Nelson directing him to submit a "brief...
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