Opinion
3:22-CV-0039 (SVN)
10-27-2023
GORDON CLARK, Plaintiff, v. SANTANDER BANK N.A., et al., Defendants.
RULING AND ORDER ON PLAINTIFFS' MOTION FOR STAY PENDING APPEAL, DEFENDANTS' MOTIONS TO DISMISS, AND PLAINTIFFS' MOTIONS FOR LEAVE TO AMEND COMPLAINT
SARALA V. NAGALA, UNITED STATES DISTRICT JUDGE.
In this action, pro se Plaintiff Gordon Clark and the estate of Lillian J. Clark, Gordon Clark's deceased wife, allege violations of several federal, state, and common law rights stemming from Defendants' alleged actions in connection with the repossession of the Clarks' home. In short, the Amended Complaint alleges that through a series of actions, Defendants Wells Fargo and Scott Powell (“the Wells Fargo Defendants”); Santander Bank, N.A., and Timothy Wennes, Pierre Habis, and Kenneth O'Neill (“the Santander Defendants”); and Bendett & McHugh P.C., along with Adam L. Bendett, Jeffrey M. Knickerbocker, Mark A. Piech, Joseph Abraham, and Dominick D. Neveux (“the Bendett Defendants”), worked collectively to unlawfully and fraudulently foreclose on the Clarks' home. Defendants have moved to dismiss the complaint in its entirety for various reasons. For the reasons detailed below, the Court agrees with Defendants that the Amended Complaint must be dismissed. Plaintiffs have also moved for leave to amend their complaint; as the Court finds that the proposed amendments, and any amendments related to the conduct Plaintiffs allege, would be futile, Plaintiffs' motions for leave to file the proposed Second Amended Complaint are denied, but the Court will allow Plaintiffs leave to file a proposed Third Amended Complaint consistent with this ruling.
I. FACTUAL BACKGROUND
The facts alleged in the Amended Complaint, ECF No. 72, are accepted as true for the purpose of the present motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court may also consider the attachments to the complaint in deciding a motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
Gordon and Lillian Clark were married for twenty-seven years before she passed away in October of 2020. Am. Compl., ECF No. 72 ¶ 1. Prior to her death, Lillian owned a home located at 70 Elm Street in Enfield, Connecticut. Id., Ex. F. On March 21, 2008, Lillian obtained a home equity line of credit (“HELOC”) secured by a mortgage on the property. Id. The loan is presently owned by Santander. See Am. Compl. at 21 ¶ 4. Plaintiffs contend that the mortgage was defective because it did not contain a property description, though it identified the property as 70 Elm Street. Id. ¶ 28(3); id., Ex. F. On February 12, 2012, Plaintiff Clark filed a notice of lien in the amount of $300,000 against the property. Am. Compl., Ex. E.
On May 1, 2019, Santander Bank, N.A. sent a letter addressed to “Lillian Byron f/k/a Lillian Clark” stating that Santander had recently been notified by the Town of Enfield that Lillian was delinquent on property taxes, the payment of which was a term of Santander's HELOC loan. Id. ¶ 28(1); Am. Compl, Ex. C. The letter stated that, if a lump sum payment of $37,575.86 was not paid by May 20, 2019, Santander would “exercise its rights to accelerate the amount secured by the collateral and institute a lawsuit to foreclose on the collateral.” Id. According to Plaintiffs, however, the Clarks were current on their property taxes before this letter was sent. Id. ¶ 28(2). Plaintiff repeatedly called, emailed, and mailed letters to Santander and its executives, including to Defendant Powell, who was at the time Santander's Chief Executive Officer and later became Wells Fargo's Chief Operating Officer, and the other individual Santander Defendants, demanding that the erroneous foreclosure letter be withdrawn, but Santander would not withdraw it. Id. at 22 ¶¶ 9-10; id. at 1-2 ¶ 1; id. at 3 ¶ 4; id. at 4 ¶ 10.
Instead, on November 22, 2019, Santander Bank, NA (“Santander”) filed a complaint against Lillian in Connecticut Superior Court, seeking reformation of the mortgage issued on the home, as well as foreclosure of that mortgage. Id. ¶¶ 26-27. Because Plaintiff had a lien on the property, he was also named as a co-defendant in the foreclosure action. See Santander Bank N.A. v. Lillian Clark, et al., Connecticut Superior Court, Housing Session, Case No. HHD-CV19-6120472-S. Plaintiffs contend that this action was filed despite Lillian never having missed a payment on the mortgage, id. ¶ 28(1), and despite that Santander did not have a valid interest in the property, id. ¶ 28(3). Plaintiff alleges he has a valid and secured first lien on the property ahead of Santander. Id. ¶ 28(4). Plaintiffs further allege that Defendant Bendett & McHugh, as well as several of its attorneys named in this lawsuit (Defendants Adam Bendett, Jeffrey Knickerbocker, Dominick Neveux, Joseph Abraham, and Mark Piech), knew that the foreclosure suit was meritless, yet proceed anyway. Id. ¶¶ 29-30, 38. Lillian bequeathed her home to Plaintiff when she passed away in October of 2020, during the pendency of the state foreclosure suit. Id. at 12 ¶ 8.
On May 2-4, 2023, the Superior Court for the Judicial District of Hartford has held a trial in the underlying foreclosure action and entered judgment in favor of Santander, ordering a foreclosure by sale. See Santander Bank N.A. v. Lillian Clark, et al., HHD-CV-19-6120472S; ECF No. 195-3. The Connecticut Appellate Court has since affirmed this decision, dismissing the appeal as “frivolous.” Santander Bank N.A. v. Lillian Clark, et al., Appeal No. AC-46473; ECF No. 195-4 at 2.
Separately, the Amended Complaint alleges that Plaintiff submitted complaints to banking regulators about Defendants Wells Fargo and Powell allegedly committing financial fraud, and then was subsequently denied the opportunity to open two business checking accounts with Wells Fargo for no legitimate reason. Am. Compl., Counts Sixteen, Seventeen, & Eighteen, ¶¶ 3-6. Plaintiff was later able to open the accounts at another bank. Id. ¶ 7.
Although the Amended Complaint spans forty-three pages, this is the sum total of the relevant facts. To the extent any further information in the Amended Complaint is relevant to the Court's decision, it will be discussed below. Based on these facts, Plaintiffs have brought the following claims against all Defendants except Wells Fargo and, in certain instances, except Defendant Powell: theft of real property by financial fraud (Count One); negligence (Count Two); abuse of process (Count Three); and “gross, malicious, intentional, negligent, incompetent, reprehensible, unconscionable, and repeated infliction of physical, mental, and emotional distress” (Count Seven). Plaintiffs have also brought the following claims against the Santander Defendants: financial fraud, under 18 U.S.C. § 1005 (Count Four); mortgage fraud, under 18 U.S.C. § 1005 (Count Five); mail fraud, under 18 U.S.C. § 1341 (Count Six); age discrimination, under the Fair Housing Act, 42 U.S.C. §§ 3601-3631 et seq. (Count Eight); race discrimination, under the Fair Housing Act (Count Nine); redlining, under the Fair Housing Act (Count Ten); breach of contracts (Count Eleven); breach of oral contracts (Count Twelve); assumption of duty (Count Thirteen); breach of the covenant of good faith and fair dealing (Count Fourteen); violation of the Fair Debt Collection Practices Act (“FDCPA”) (Count Fifteen); and false advertising under the Lanham Act (Count Twenty-One). Plaintiffs allege the following claims against Powell and Wells Fargo: financial fraud, under 18 U.S.C. § 1005 (Count Sixteen); mail fraud, under 18 U.S.C. § 1341 (Count Seventeen); and retaliation by financial fraud, under 18 U.S.C. § 1005 (Count Eighteen). Finally, Plaintiffs allege a financial fraud claim under 18 U.S.C. § 1005 against the Bendett & McHugh Defendants (Count Nineteen), and a conspiracy to commit financial fraud claim under 18 U.S.C. § 1005 against all Defendants (Count Twenty).
II. PROCEDURAL HISTORY
Plaintiffs initiated this action in January of 2022, and then moved to stay the action because Plaintiff Clark was also litigating two related matters in Connecticut state court. ECF No. 44. The Court denied the motion for a stay, and Plaintiffs filed the operative Amended Complaint in April of 2022. ECF No. 72. All Defendants moved to dismiss the Amended Complaint. See ECF No. 82 (Bendett & McHugh Defendants' motion to dismiss); ECF No. 83 (Santander Defendants' motion to dismiss); ECF No. 87 (Wells Fargo Defendants' motion to dismiss). In May of 2022, Plaintiffs moved for leave to file a Second Amended Complaint. ECF No. 108. These motions are addressed in this ruling.
Separately, the Court sua sponte raised a concern about whether Plaintiff Clark, as a pro se litigant, could represent the Estate of Lillian Clark in this action, and requested briefing from the parties on this issue. See ECF No. 118. The Court concluded, both initially and upon reconsideration, that Plaintiff Clark could not represent the Estate of Lillian Clark pro se because, although he is the executor of the estate, the estate has beneficiaries and creditors other than Plaintiff Clark, under the broad definition of the term “creditor” in Connecticut law. ECF Nos. 133, 154, 159. The Court therefore ordered Plaintiff Clark to obtain legal representation for the Estate Plaintiff by November 18, 2022, or the claims brought by the Estate Plaintiff would be dismissed. ECF No. 154. The day before the dismissal was to take effect, Plaintiff Clark filed an interlocutory appeal of this issue, ECF No. 172, along with an “emergency” motion to stay the district court proceedings pending the outcome of the appeal, ECF No. 174. Given the filing of the interlocutory appeal, the Court did not formally dismiss the claims brought by the Estate Plaintiff. The motion to stay the district court proceedings remains pending.
The Court declines to stay its proceedings during the pendency of the appeal, and therefore denies Plaintiffs' motion to stay. “As a general matter, ‘[t]he filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.'” United States v. Rogers, 101 F.3d 247, 251 (2d Cir. 1996) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)) (alterations in original). In this case, Plaintiff has filed an interlocutory appeal as to whether he may represent Lillian's estate pro se. As to this issue, the Court has no jurisdiction. See id. (“A district court does not regain jurisdiction until the issuance of the mandate by the clerk of the court of appeals.”). Because the Amended Complaint brings claims other than those brought on behalf of the estate, however, the Court retains jurisdiction to adjudicate those matters.
Thus, the Court must next consider whether stay the action, even as to claims brought on behalf of Plaintiff, while the appeal is pending. The Court must consider four factors in determining whether to stay a case pending appeal: “(1) likelihood of success in the appeal; (2) whether the requesting party would be irreparably injured without a stay; (3) whether a stay will substantially injure the other parties interested in the proceedings; and (4) the public interests at play.” Ferring B.V. v. Allergan, Inc., 343 F.Supp.3d 284, 291 (S.D.N.Y. 2018). The first two factors “are the most salient concerns.” Sutherland v. Ernst & Young LLP, 856 F.Supp.2d 638, 640 (S.D.N.Y. 2012). Further, the factors are a “sliding scale” in which “the necessary level or degree of possibility of success will vary according to the court's assessment of the other stay factors.” Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir. 2006) (cleaned up). Finally, the moving party “bears the burden of proving that a stay should be granted, and stays pending an appeal are only granted in limited circumstances.” In re Taub, 470 B.R. 273, 277 (E.D.N.Y. 2012).
The Court does not find that a stay is appropriate here. First, Plaintiffs have not demonstrated a likelihood of success on appeal. “The single most important factor is likelihood of success on the merits.” In re Baker, No. 05-CV-3487 (CPS), 2005 WL 2105802, at *3 (E.D.N.Y. Aug. 31, 2005). In their reply brief in support of their motion to stay proceedings, Plaintiffs argue that the existence of the appeal proves its likelihood of success. ECF No. 180 at 5. However, as Defendants point out, there are open questions as to whether the Court's decision is final for purposes of appellate jurisdiction and, in any event, Second Circuit precedent appears to foreclose the merits of the issue. Wells Fargo Memo. in Opp. To Motion to Stay, ECF No. 178 at 4-6 (citing Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997)). For these reasons, Plaintiffs have not met their burden demonstrating a likelihood of success on appeal.
Second, Plaintiffs will not suffer irreparable injury without a stay. The issue on appeal is not case dispositive: Plaintiffs' remaining claims are distinct from those brought on behalf of the estate. This weighs in favor of denying Plaintiffs' motion to stay. See Ferring B.V., 343 F.Supp.3d at 291 (finding irreparable injury where pending appeal was dispositive).
Finally, while the “third and fourth factors are less critical than the first and second”-and Defendants make no arguments as to these factors-the Court will discuss both factors briefly. Gabay v. Roadway Movers, Inc., No. 1:22-CV-6901 (JLR), 2023 WL 3569351, at *2 (S.D.N.Y. May 19, 2023) (citing Meyer v. Valanick, 203 F.Supp.3d 393, 395 (S.D.N.Y. 2016)). Concerning the third factor, the Court notes that whether a stay injures Defendants “depends on how long it takes the Court of Appeals to render a decision on [Plaintiff's] interlocutory appeal, which no one can predict.” Meyer, 203 F.Supp.3d at 396. The Court notes that appellees' brief was due in the Second Circuit on October 25, 2023, suggesting that the appeal is moving along. Still, when it will be fully resolved is unknown. Concerning the fourth factor, the Court finds that the public interest weighs against granting a stay because proceeding on Plaintiff Clark's non-appealed claims is an efficient use of judicial resources.
Thus, because the first two critical factors, and the fourth factor, weigh in favor of proceeding on the remaining claims, and because the third factor does not tip strongly in favor of either party, the Court denies Plaintiffs' motion to stay the proceedings.
As to how to proceed with the claims brought by the Estate Plaintiff, given that the issue of whether Plaintiff Clark may represent the estate of his late wife pro se is pending appeal, the Court proceeds with the ruling below as an indicative ruling under Federal Rule of Civil Procedure 62.1. Specifically, the Court notes that it would grant Defendants' motions to dismiss the Estate Plaintiff's claims and deny the Estate Plaintiff's motion for leave to amend, if the Court of Appeals remands for that purpose, for the reasons explained below.
As the Court has denied Plaintiffs' motion to stay these proceedings, it will move forward with consideration of Defendants' motions to dismiss and Plaintiffs' motion for leave to amend the complaint. In considering these motions, the Court is mindful of its duty to construe the pleadings of a pro se litigant liberally. Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).
III. SUBJECT MATTER JURISDICTION
The Court first addresses Defendants' arguments concerning its subject matter jurisdiction.
“Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (cleaned up). A federal court must dismiss an action whenever it determines that it lacks subject matter jurisdiction over the action, Fed.R.Civ.P. 12(h)(3). Federal courts have original jurisdiction over civil actions arising under the Constitution, laws, and treaties of the United States, 28 U.S.C. § 1331, and diversity jurisdiction over all civil actions “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between... citizens of different States[,]” 28 U.S.C. § 1332(a). Here, Plaintiffs are not diverse from many of the Defendants, as they are all alleged to be Connecticut citizens. Therefore, the Court's subject matter jurisdiction must arise from a federal question. If claims that fall under the Court's original jurisdiction are dismissed, the Court may decline to exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3).
Plaintiffs have alleged claims under various federal statutes: 18 U.S.C. §§ 1005 and 1341, the Fair Housing Act, the FDCPA, and the Lanham Act. The Court therefore examines first whether Plaintiffs have alleged plausible claims under any of these statutes. It concludes Plaintiffs have not.
A. Alleged Violations of Federal Criminal Statutes
First, Plaintiffs' causes of action brought under the federal criminal laws of the United States fail because these statutes do not create private rights of action. Specifically, Plaintiffs assert claims for attempted theft by financial fraud in violation of 18 U.S.C. § 1005 (Count One), financial fraud in violation of 18 U.S.C. § 1005 (Counts Four, Sixteen, and Nineteen), mortgage fraud in violation of 18 U.S.C. § 1005 (Count Five), mail fraud in violation of 18 U.S.C. § 1341 (Counts Six and Seventeen), retaliation by financial fraud in violation of 18 U.S.C. § 1005 (Count Eighteen), and conspiracy to commit financial fraud in violation of 18 U.S.C. § 1005 (Count Twenty).
It is well-established, however, that “federal criminal statutes do not provide private causes of action.” Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009) (summary order); Xu v. Neubauer, 166 F.Supp.3d 203, 207 (D. Conn. 2015) (same). Plaintiffs' claims for financial fraud, mail fraud, mortgage fraud, retaliation through financial fraud, and conspiracy to commit financial fraud pleaded under the federal criminal statutes must therefore fail, because the federal criminal statutes Plaintiffs cite do not provide private rights of action.
Moreover, even if such claims were cognizable under common law fraud theories, causes of action alleging fraudulent conduct are subject to Rule 9(b)'s heightened pleading standard, which requires that a party alleging fraud “state with particularity the circumstances constituting the fraud or mistake.” The Second Circuit has noted that one of the goals of Rule 9(b)'s heightened pleading standard is to “provid[e] a defendant fair notice of plaintiff's claim, to enable preparation of defense.” DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir. 1987). Thus, when it comes fraud, “bare-bones allegations do not satisfy Rule 9(b).” Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 119 (2d Cir. 2013). To satisfy Rule 9(b), “the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” MacNaughton v. Young Living Essential Oils, LC, 67 F.4th 89, 99 (2d Cir. 2023).
None of Plaintiffs' fraud claims meet this standard. Specifically, Count One contains only conclusory allegations about alleged bad faith conduct by Santander and the Bendett Defendants. In Counts Four and Six, Plaintiffs allege only that Santander has “failed to validate the alleged debt and has continued to send monthly false and deceptive statements of account to the Plaintiffs.” Am. Compl. Count Four ¶ 4, Count Six ¶ 4. The Amended Complaint does not say how these actions or statements were fraudulent. Conclusory allegations that the statements were false and fraudulent does not provide Defendants with sufficient notice to defend against the claim.
Count Five alleges that Santander is “knowingly attempting to foreclose on an admitted defective/invalid alleged mortgage that contains no valid legal property description and was not in default at the time.” Id. Count Five ¶ 4. It is unclear precisely what claim Plaintiffs assert through Count Five. Connecticut law does not recognize a private cause of action for mortgage fraud. See Edwards v. McMillen Cap., LLC, No. CV155008533S, 2016 WL 7196319, at *1 (Conn. Super. Ct. Nov. 4, 2016). Even were this not the case, Count Five fails to provide any information regarding what statements Plaintiffs believe were fraudulent, why they were untrue, and who said them. The same is true for Counts Sixteen, Seventeen, Eighteen, and Nineteen, which relate to Wells Fargo's alleged failure to open business checking accounts for Plaintiff Clark after his complaints of fraud, and Count Twenty, which relates to an alleged conspiracy by all Defendants to commit financial fraud.
Because Plaintiffs cannot use criminal statutes to assert a private cause of action under federal law, and because Plaintiff Clark's fraud claims fail to meet the heightened pleading requirements of Rule 9(b), Counts One, Four, Five, Six, Sixteen, Seventeen, Eighteen, Nineteen, and Twenty must be dismissed. This is an indicative ruling with respect to the Estate Plaintiff's claims.
B. Alleged Violations of Fair Housing Act
Next, Plaintiffs allege violations of the Fair Housing Act, claiming that Santander Bank and its executives-Defendants Powell, Wennes, Habis, and O'Neill-committed age discrimination against Lillian by denying her requested increases of credit on her home equity line of credit and denying her a personal loan when she was 92 years old, Am. Compl. at 29 (Count Eight); committed race discrimination against Plaintiff Clark, who is of Asian descent, by providing him bad customer service at a bank branch in Enfield, Connecticut, including by not returning his phone calls until an African-American bank manager prompted a return phone call to him, id. at 30-32 (Count Nine); and committed “redlining” by denying Lillian the increases in her home equity line of credit and a personal loan, id. at 32-33 (Count Ten).
These claims, too, fail at the threshold. First, as to the allegations that Lillian was denied increases in her home equity line of credit and was denied a personal loan, Plaintiff Clark has no standing to assert these claims on Lillian's behalf. The doctrine of standing “limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised (May 24, 2016). In that vein, federal court jurisdiction “can be invoked only when the plaintiff himself has suffered some threatened or actual injury resulting from the putatively illegal action.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (cleaned up). Here, Plaintiff Clark cannot assert Lillian's claims for alleged age discrimination and redlining.
As an indicative ruling, the Court further notes that it would dismiss these claims if they are properly pursued by Plaintiff Clark in a pro se capacity representing the Estate Plaintiff, as well. For purposes of this indicative ruling, the Court assumes without deciding that the Estate Plaintiff has standing to pursue the age discrimination and redlining claims on behalf of Lillian. The Court treats the claims as brought under the Fair Housing Act, as that is how Plaintiffs have labeled them, and under the Equal Credit Opportunity Act (“ECOA”), which prohibits discrimination against any applicant for credit on the basis of, among other categories, age. See 15 U.S.C. § 1691(a). To state a claim for relief under Section 3605 of the Fair Housing Act, a plaintiff must plead that she is (1) a member of a protected class; (2) she attempted to engage in a “residential real estate-related transaction” and met all relevant qualifications for doing so; (3) that the defendant refused to transact business with the applicant despite her qualifications; and (4) that the defendant continued to engage in the type of transaction in question with other parties with similar qualifications. Johnson v. Citibank, 234 F.3d 1262, at *2 (2d Cir. 2000) (summary order). A “residential real estate-related transaction” means, among other things, the “making or purchasing of loans or providing other financial assistance . . . for purchasing, constructing, improving, repairing, or maintaining a dwelling” or “secured by residential real estate.” 42 U.S.C. § 3605(b)(1). The ECOA provides that it is unlawful for “any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction . . . on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract).” 15 U.S.C. § 1691(a).
Regardless of the labeling, in order to survive dismissal, the Amended Complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” Id. However, the Court is not “bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions,” id., and “a formulaic recitation of the elements of a cause of action will not do,” Iqbal, 556 U.S. at 678. Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
Here, the Amended Complaint alleges in its age discrimination and redlining counts only that Lillian, who was 92 years old, “had good credit,” and had a home in a “working-class and blue-collar town,” with “between $70,000 and $100,000 of additional home equity,” yet Santander “repeatedly denied” her “an additional $10,000 increase on her HELOC, and also repeatedly denied her a $10,000 personal loan.” Am. Compl., at 29, 32-33. The Amended Complaint lacks any details concerning Lillian's applications for these loans, including the dates when she applied for them and the reasons for the alleged denials. As for the Fair Housing Act claim, it also fails to allege that Santander continued to conduct business with younger people. Regarding the redlining claim, the allegations are vague and conclusory, and cannot support a plausible claim under either statute. See Jackson v. Wells Fargo Home Mortg., No. 15-CV-5062 (PKC) (ST), 2018 WL 8369422, at *5 (E.D.N.Y. Aug. 10, 2018), aff'd, 811 Fed.Appx. 27 (2d Cir. 2020) (summary order) (holding that conclusory and speculative assertions that the plaintiff's membership in a protected class led to her being denied a loan and of “redlining” did not state a plausible claim). Moreover, the Amended Complaint lacks any allegations about specific actions taken by the individual Santander Defendants, Wennes, Habis, and O'Neill. Even drawing all inferences in favor of the Estate Plaintiff, the Court is unable to conclude that the sparse, conclusory allegations in the Amended Complaint state a plausible claim of discrimination by Santander or the individual Santander Defendants under either the Fair Housing Act or the ECOA.
Finally, Plaintiff Clark has alleged that Santander committed race discrimination against him under the Fair Housing Act because he is Asian and was subject to poor customer service at his local Santander Bank branch because of his race. See Am. Compl. Count Nine. Specifically, Plaintiff Clark alleges that various bank managers refused to listen to him when he attempted to inform them that there was an issue with the property taxes on the home. Id. Count Nine ¶ 7. This meant that Plaintiff Clark repeatedly returned to the local bank branch to complain about the tax issue until an African-American bank manager finally offered to help him. Id. ¶ 9. After receiving help, Plaintiff was finally able to resolve the property tax issue. Id. ¶ 11.
These allegations fail to state a claim under the Fair Housing Act or the ECOA. First, there are no allegations suggesting that Plaintiff Clark was attempting to engage in a residential real estate transaction or a credit transaction. Additionally, aside from Plaintiff Clark's allegation that he is Asian and that the bank manager who ultimately helped him is African-American, there are insufficient allegations from which the Court could plausibly infer that he received poor customer service-to the extent such treatment could form the basis of a cognizable discrimination claim- on account of his race. Finally, Plaintiff does not allege that the individual Santander Defendants were in any way involved in the actions alleged to be discriminatory. The Court cannot conclude that the allegations of the Amended Complaint state a plausible race discrimination claim under the Fair Housing Act or the ECOA.
For these reasons, Counts Eight, Nine, and Ten against the Santander Defendants under the Fair Housing Act (and the ECOA) must be dismissed. This is an indicative ruling with respect to the Estate Plaintiff's claims.
C. Alleged Violations of the Fair Debt Collection Practices Act
Plaintiffs also allege that the Santander Defendants and Bendett Defendants have attempted to collect purported debts from Plaintiff by sending false and deceptive account statements to Plaintiff on a monthly basis, as well as repeatedly calling Plaintiff despite being asked in writing to discontinue calling him. Am. Compl. Count Fifteen ¶¶ 4-5. As this count is alleged against both the Santander Defendants and the Bendett Defendants, the Court will take the allegations against each in turn.
1. Santander Defendants
Plaintiffs allege that Santander violated the FDCPA by collecting a debt that Plaintiffs owed directly to it. Plaintiffs have failed to state a plausible claim against the Santander Defendants under the FDCPA.
The FDCPA provides that a “debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C § 1692e. Crucially, under the FDCPA, a “debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6) (emphasis added). A “creditor,” by contrast, is fined as “any person who offers or extends credit creating a debt or to whom a debt is owed.” 15 U.S.C. § 1692a(4). According to the Amended Complaint, Santander attempted to collect a debt owed directly to it. Therefore, Santander did not act as a debt collector under the FDCPA, and Plaintiffs' claims against Santander in Count Fifteen fail as a matter of law. See Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir. 1998) (“As a general matter, creditors are not subject to the FDCPA”). Plaintiffs also do not allege any facts suggesting that the individual Santander Defendants were involved in the alleged FDCPA violation, so the claim against them must also fail. This is an indicative ruling with respect to the Estate Plaintiff's claim.
2. Bendett Defendants
While the Amended Complaint is less clear as to how an FDCPA claim relates to the Bendett Defendants, it appears Plaintiffs claim that the Bendett Defendants violated the FDCPA by instituting litigation on Santander's behalf to foreclose on the Clarks' home, despite knowing that such an action was improper. The Bendett Defendants argue that any such claim is untimely, and the Court agrees.
An FDCPA claim must be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). When an FDCPA claim is based on the commencement of litigation to collect a debt, the violation occurs on the date when the purportedly improper lawsuit is filed. See Costello v. Wells Fargo Bank NA, No. 3:21-CV-01388 (VAB), 2022 WL 1912870, at *11 (D. Conn. June 3, 2022); Egbarin v. Lewis, Lewis & Ferraro LLC, No. Civ.A. 3:00-CV-1043 (JCH), 2006 WL 236846, at *9 (D. Conn. Jan. 31, 2006) (“FDCPA claims based on the filling of a lawsuit generally accrue when a claim is filed, not when judgment is rendered”). Here, the Amended Complaint alleges the underlying foreclosure action was filed on November 22, 2019. Am. Compl. ¶ 26. The instant action was not filed until January 10, 2022, more than two years later. Thus, any claims against the Bendett Defendants under the FDCPA are time barred and must be dismissed. Moreover, even were the claim not time-barred, the Amended Complaint's allegations are vague and conclusory, asserting only that the account statements-which it is far from clear the Bendett Defendants sent-were “false and deceptive,” without describing how they were false and deceptive. As a result, Count Fifteen fails in its entirety and all claims asserted thereunder are dismissed. This is an indicative ruling with respect to the Estate Plaintiff's claim.
D. Alleged Violations of the Lanham Act
The final federal claim alleged by Plaintiffs is a claim for false advertising under 15 U.S.C. § 1125(a)(1)(B) (“the Lanham Act”). Plaintiffs attach a screenshot of Santander's website and allege that Santander claims to have excellent customer service, but Plaintiffs claim they never received customer services approaching the level that Santander advertised. Am. Compl. Count 21 ¶ 5. The Lanham Act provides, in pertinent part, that:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-- . . .
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.15 U.S.C. § 1125(a)(1)(B). Plaintiff claims Santander violated this provision through its advertising of better customer service than offered.