Opinion
CV146050373S
11-08-2016
Donna Vaccaro et al. v. U.S. Bank, N.A. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION IN RE MOTION TO STRIKE #142
Brian T. Fischer, J.
FACTS
On October 16, 2014, the plaintiffs, Donna and Domenic Vaccaro, filed their original summons and complaint alleging various causes of action against the defendants, U.S. Bank, N.A. and Milford Law, LLC d/b/a Kapusta, Otzel, and Averaimo, the law firm that represented U.S. Bank, N.A., arising from an underlying foreclosure action (foreclosure action). On December 31, 2015, the plaintiffs filed a second amended complaint pursuant to the court's order, Ecker, J., which is the operative complaint.
The plaintiffs filed a nineteen-count complaint against the two defendants. Six counts against the defendant, Milford Law, LLC, were stricken by the court, Ecker, J., on November 2, 2015, in order #125.20. The ten counts in the second amended complaint against the defendant, U.S. Bank, N.A., are discussed in this memorandum.
This is correctly referred to as the second amended complaint even though it is titled " Amended Complaint" because there was a prior amended complaint filed as of right on November 26, 2014.
The plaintiffs, in their second amended complaint, allege the following facts. On or about October 28, 2013, the defendant served the foreclosure action on the plaintiffs. The plaintiffs made written offers to either payoff all sums due on the note or compromise, both during the foreclosure action and after it was dismissed, but the defendant never responded. The foreclosure action was dismissed on June 5, 2014, in the plaintiffs' favor by the court, Maronich, J., because the defendant failed to comply with court orders pursuant to the foreclosure mediation statute and production of certain documentation. After the foreclosure action was dismissed, the servicing agent for the note informed the plaintiffs that it had not received any offers of payoff or notice of any offers to compromise and denied any knowledge that the plaintiffs had made any offers. The plaintiffs suffered financial loss, damage to their reputations, and other harm as a result of the defendant's actions and assert claims for vexatious litigation, abuse of process, negligence, and other torts, all stemming from the dismissal of the foreclosure action.
On April 4, 2016, the defendant filed a motion to strike all of the counts against it, with a memorandum of law in support, on the ground that the plaintiffs failed to allege any of the essential elements of their assorted claims. The plaintiffs filed an objection and memorandum of law in support on June 27, 2016, and the defendant filed a reply memorandum on August 19, 2016. The matter was heard at short calendar on August 22, 2016.
DISCUSSION
" 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). " 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.) Geysen v. Securitas Security Services U.S.A., Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
I. Counts One, Three, and Five: Vexatious Litigation
The defendant first challenges the counts of the plaintiffs' second amended complaint alleging causes of action for both common-law and statutory vexatious litigation. The defendant argues that the plaintiffs have failed to plead sufficient facts to establish that the defendant brought the foreclosure action with malice and without probable cause and, therefore, cannot state claims for vexatious litigation. The plaintiffs argue that all four elements have been alleged in the second amended complaint.
" The statutory cause of action for vexatious litigation exists under [General Statutes] § 52-568, and differs from a common law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages." (Internal quotation marks omitted.) Schaeppi v. Unifund CCR Partners, 161 Conn.App. 33, 45, 127 A.3d 304 (2015). Section 52-568 provides in relevant part: " Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others . . . (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
" Vexatious litigation requires a plaintiff to establish that: (1) the previous lawsuit or action was initiated or procured by the defendant against the plaintiff; (2) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice; (3) the defendant acted without probable cause; and (4) the proceeding terminated in the plaintiff's favor." Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007). " In a vexatious suit action, the defendant is said to have acted with 'malice' if he acted primarily for an improper purpose; that is, for a purpose other than that of securing the proper adjudication of the claim on which [the proceedings] are based . . . Thus, while malice may be inferred from the lack of probable cause, lack of probable cause may not be inferred from malice." (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 256 n.16, 597 A.2d 807 (1991).
" Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of . . . Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." (Citation omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, supra, 220 Conn. 256. " [P]robable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause." (Emphasis in original.) Falls Church Group, Ltd v. Tyler, Cooper, & Alcorn, LLP, 281 Conn. 84, 103, 912 A.2d 1019 (2007). " A lack of probable cause cannot be inferred from the dismissal of the case." Cadle Co. v. D'Addario, 131 Conn.App. 223, 238, 26 A.3d 682 (2011).
In the present case, the plaintiffs allege that the defendant acted without probable cause because it was only assigned the mortgage, not the note. The plaintiffs allege that the defendant acted with malice in failing to (1) bring forth the original note and a credible witness to prove it was the holder of the note at the time the foreclosure action was commenced, and (2) comply with the court's order, Maronich, J., to provide the required mediation paperwork. The facts as alleged, however, do not sufficiently support an allegation that the defendant acted with malice and without probable cause. Although it is alleged that the defendant may not have properly followed procedure and failed to produce the required mediation paperwork, these allegations alone do not necessarily show that the initial filing of the foreclosure action was for a purpose other than collecting monies owed, and the facts do not sufficiently support such an allegation.
Further, even if the plaintiffs' allegation that the defendant was only assigned the mortgage and not the note is true, that is insufficient to support an allegation that the defendant lacked probable cause to bring the foreclosure action. An assignee can bring suit in its own name as well as the name of its assignor. See General Statutes § 52-118. Morever, the plaintiffs do not dispute defaulting on their mortgage. Finally, a lack of probable cause cannot be inferred from the fact that the foreclosure action was dismissed. In lieu of the fact that the plaintiffs have failed to allege facts that establish that the defendant acted with malice or lacked probable cause in bringing the foreclosure action, other than unsupported legal conclusions, the plaintiffs cannot support a claim for vexatious litigation. Therefore, counts one, three, and five are stricken.
Although the plaintiffs do not expressly concede defaulting on, or specifically allege that they defaulted on the mortgage in their second amended complaint, the plaintiffs have never contested the defendant's statements that the plaintiffs were in default. Additionally, the fact that there was an indebtedness is necessarily implied from the plaintiffs' allegations in their second amended complaint that they filed a foreclosure mediation certificate, filed a motion to dismiss alleging that the defendant did not hold the note or the indebtedness represented by the note, and attempted to pay off the debt or make offers of compromise. See Geysen v. Securitas Security Services U.S.A., Inc., supra, 322 Conn. 398. The court can thus infer that there was debt owed to the defendant. See id.; see also Beck & Beck, LLC v. Costello, 159 Conn.App. 203, 207, 122 A.3d 269 (2015).
II. Counts Seven and Nine: Reckless Misconduct and Negilgence
The defendant next challenges counts seven and nine of the plaintiffs' second amended complaint alleging claims of reckless misconduct and negligence, respectively, and argues that it did not owe the plaintiffs any legally cognizable duty. Even if a duty existed, the defendant argues that no breach occurred because the plaintiffs defaulted on their mortgage and thus, a foreclosure action could validly be brought against them. The plaintiffs argue that the elements of reckless misconduct and negligence have been pleaded because the plaintiffs allege the existence of a statute creating a duty.
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action." (Internal quotation marks omitted.) Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 174, 72 A.3d 929 (2013). " To be legally sufficient, a count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff." Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985).
In the present case, the plaintiffs have failed to allege that a duty of care is imposed on lenders by the foreclosure mediation statutes or why one should be found to exist. Construing the second amended complaint broadly and realistically, it appears the plaintiffs base their allegations of a duty owed by the defendant to the plaintiffs on a failure by the defendant to timely provide certain paperwork, as required by General Statutes § 49-31l (c)(4), during mediation and in continuing to prosecute the foreclosure action. The plaintiffs, however, fail to allege how § 49-31l(c)(4) imposes a duty of care that would support a cause of action in negligence or recklessness.
It should be noted that both parties in their pleadings at various points incorrectly cite this statute. The defendant's reply memorandum in support of its motion to strike cites " 49-319, " which does not appear to be a statute, and the plaintiffs, in their memorandum in opposition, cite to " 47-39, " which is a statute concerning service upon a party claiming an easement. The correct statute at issue, and which is alleged in the complaint, is § 49-31l, part of the foreclosure mediation statutory framework.
General Statutes § 49-31l(c)(4) provides in relevant part: " Promptly upon receipt of the notice of assignment [to mediation], but not later than the thirty-fifth day following the return date, the mortgagee or its counsel shall deliver to the mediator . . ."
There is no automatic duty between a borrower and a lender. See e.g., Frigon v. Enfield Sav. & Loan Asso., 195 Conn. 82, 87, 486 A.2d 630 (1985) (" [t]he fact that a bank is indebted to its account holders for the amount of the funds that they have deposited . . . imposes no special duty of care for the safekeeping of the funds on deposit" [citations omitted]); Dubinsky v. Citicorp Mortgage, Inc., 48 Conn.App. 52, 58-60, 708 A.2d 226, cert. denied, 244 Conn. 926, 714 A.2d 9 (1998) (finding lender under no duty to provide mortgagor with accurate appraisal in loan application, absent contractual language to contrary, where overvaluation of property led to larger mortgage); DCR Mortgage III Sub I, LLC v. Sullivan, Superior Court, judicial district of New Britain, Docket No. CV-09-5013787-S, (August 16, 2010, Vacchelli, J.) (granting summary judgment for negligence counterclaim in foreclosure action where " [n]othing in the note or mortgage or other records in the case creates or imposes on the plaintiff a duty of care owed to the defendants").
Failure to comply with the foreclosure mediation procedure can result in sanctions, including dismissal of the case, at the discretion of the court; see General Statutes § 49-31n; which is the actual remedy that occurred in the underlying foreclosure action. The court, Maronich, J., dismissed the foreclosure action in favor of the plaintiffs because the defendant did not comply with this procedure. The plain language of the statute, however, does not authorize a private cause of action for failure to comply or timely comply with the statute. See General Statutes § 1-2z; cf. Blanco v. Bank of America, N.A., Superior Court, judicial district of Hartford, Docket No. CV-15-6060162-S (April 20, 2016, Dubay, J.) (62 Conn.L.Rptr. 190, ) (declining to impose new duty of care on lenders in loan modification context in light of public policy concerns, i.e., increased litigation and frustration of loan modification process).
General Statutes 1-2z provides in relevant part: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes . . ."
In light of having failed to allege the existence of a legal or acknowledged duty owed to them by the defendant pursuant to statute, the plaintiffs cannot support claims of reckless misconduct and negligence. The court grants the defendant's motion to strike counts seven and nine of the second amended complaint.
III. Count Eleven: Abuse of Process
The defendant next challenges count eleven of the plaintiffs' second amended complaint, alleging a claim of abuse of process, arguing that the plaintiffs have not established that the foreclosure action was commenced for an improper motive or purpose. The plaintiffs counter that the allegations regarding the defendant's commencement of the foreclosure action, despite knowing it was not the holder of the note, establishes that the defendant abused process in bringing a lawsuit for a purpose other than foreclosure; namely, to put the plaintiffs in fear of personal liability, and to embarrass and harass them. Compl. Ct. 11 ¶ ¶ 44-45.
" An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process . . . the gravamen of the action for abuse of process is use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . [T]he addition of primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citations omitted; emphasis in original; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987). " [T]he viability of an abuse of process claim turns on the specificity of its allegations . . ." Id., 497 n.2. " The import from Mozzochi is that the relevant inquiry is whether the defendant used the judicial process for some ulterior motive unrelated to the action at hand, not whether the defendants' methods to oppose were weakly supported or otherwise lacking in merit." Sacred Heart University v. Voll, Superior Court, judicial district of Fairfield, Docket No. CV-15-6048244-S (April 25, 2016, Kamp, J.) (62 Conn.L.Rptr. 220, 224, ).
In the present case, the plaintiffs allege that the purpose of the foreclosure action was to put the plaintiffs " in fear of personal liability, " to humiliate them, and to impair their reputation in an attempt to influence the outcome of the foreclosure action. Compl., Ct. 11 ¶ ¶ 44-45. The plaintiffs also allege that the defendant's failure to comply with § 49-31l, and its seeking to reopen the foreclosure action after the dismissal constituted an abuse of process. The plaintiffs further allege: " It is not the purpose of the legal process to intimidate, harass, embarrass, oppress, or disrepute a party in the total absence of liability." Compl., Ct. 11 ¶ 47.
Turning to the legal sufficiency of the plaintiffs' complaint, it is clear that the plaintiffs' allegations in the present case are analogous to those that were before the court in Mozzochi v. Beck, supra, 204 Conn. 491. Affirming the decision of the trial court striking the plaintiff's abuse of process claim, the court examined the plaintiff's allegations and explained that " it is useful to note . . . what the [plaintiff's] complaint does not allege. There is no claim that the defendants undertook any action outside of the normal course of proceedings in the [underlying] case itself. For example, there is no claim that the defendants used the pleadings or the process in the [underlying] case as leverage to coerce the plaintiff to pay a debt or surrender property unrelated to that litigation . Similarly, there is no claim that the defendants used unreasonable force, excessive attachments or extortionate methods to enforce the right of action asserted in the [underlying] case. Finally, there is no claim that the defendants' purpose in pursuing the [underlying] case was to gain any collateral advantage extraneous to its merits . The only injury of which the plaintiff complains is that the defendants improperly continued to pursue the [underlying] case in order to enrich themselves . . . at the plaintiff's expense." (Emphasis added.) Id., 493-94.
In the present case, the plaintiffs do not allege that the defendant used the foreclosure process to accomplish a purpose other than that for which it was designed. Even assuming' the truth of the allegations, that an ulterior purpose of the foreclosure action was to humiliate the plaintiffs and impair their reputations, the plaintiffs do not allege that the defendant's actions were taken for purposes unrelated to the foreclosure action, or in order to gain leverage in a collateral dispute with the plaintiffs. Similarly, the plaintiffs do not claim that the defendant used the foreclosure process to coerce the plaintiffs into paying a debt or surrendering property unrelated to the mortgage that had been defaulted. Finally, even if it is true that the defendant's failure to produce certain documents was intentional and that its action seeking to reopen the foreclosure case lacked merit, such facts are not indicative of an improper use of the judicial process for purposes of an abuse of process claim. See Sacred Heart University v. Voll, supra, 62 Conn.L.Rptr. at 224, Id. . The defendant's motion to strike the plaintiffs' abuse of process claim in count eleven of the second amended complaint is granted.
IV Count Thirteen: Negligent Misrepresentation
The defendant next challenges count thirteen of the plaintiffs' second amended complaint that alleges a claim of negligent misrepresentation, arguing that the plaintiffs fail to allege facts to support the proper elements of this claim. The plaintiffs argue that the defendant knowingly misrepresented that it was the holder of the note prior to commencing the foreclosure action, that the dismissal of the foreclosure action was for lack of due diligence, and that it was working to compile the necessary mediation paperwork. Further, the plaintiffs argue that they have alleged pecuniary loss in that they had to counter, object, and answer each misrepresentation.
Liability for negligent misrepresentation is well established and " even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 72-73, 873 A.2d 929 (2005). To state a cause of action for negligent misrepresentation, a plaintiff must establish that the defendant " made a misrepresentation of fact, that [the defendant] knew or should have known it was false, that the plaintiff reasonably relied upon the misrepresentation, and that the plaintiffs suffered pecuniary harm as a result thereof." Id., 73. " [T]he plaintiff must present evidence that indicates the statement was false when made." Bellsite Dev., LLC v. Town of Monroe, 155 Conn.App. 131, 152, 107 A.3d 1028, cert. denied, 318 Conn. 901, 122 A.3d 1279 (2015); see also Glazer v. Dress Barn, Inc., supra, 74 n.32.
In the present case, the plaintiffs allege that the defendant misrepresented that it was the holder of the note, they relied on this misrepresentation, and suffered pecuniary loss in having to defend the foreclosure action. The defendant, on the face of the motion to strike, argues that the plaintiffs fail to allege any of the essential elements of the claim. In its memorandum in support, the defendant focuses on the reliance element. The defendant argues that although the plaintiffs allege that they relied on the representation that the defendant held the note, the defendant contends that it is clear from the second amended complaint that there was no actual reliance. The plaintiffs specifically allege in the second amended complaint that (1) the plaintiffs objected to the defendant's status as the note holder, (2) filed motions to dismiss the foreclosure action for lack of standing for failure to prove it was a note holder, and (3) had actual notice of the note holder's status pursuant to the land records.
In the present case, as provided above, it is inconsistently alleged that the plaintiffs did, in fact, rely on the defendant's representation that it was the holder of the note. Reading the second amended complaint broadly, it appears the plaintiffs are really alleging, not that they relied on the misrepresentations, but that because the defendant misstated the facts, the plaintiffs then had to challenge them. Nevertheless, even if the second amended complaint is construed to properly allege reliance, the remaining allegations do not sufficiently plead a claim for negligent misrepresentation because it is not enough to rely on a representation, that reliance must be also reasonable and it must be the cause of the plaintiffs' pecuniary harm. Glazer v. Dress Barn, Inc., supra, 274 Conn. 73; see also Stuart v. Freiberg, 316 Conn. 809, 822, 116 A.3d 1195 (2015). The plaintiffs allege in their second amended complaint that they filed a motion to dismiss the foreclosure action, based in part on their allegation that the defendant was not the owner and holder of the note referenced in the land records. This necessarily implies that the plaintiffs had at least record, if not actual, notice of the status of the note. Construing the second amended complaint broadly to state that the plaintiffs relied on this representation does not, therefore, save the plaintiffs' cause of action because the reliance cannot be construed as reasonable.
Finally, the plaintiffs have failed to allege that any loss allegedly suffered was a result of this misrepresentation. The plaintiffs allege that they. suffered pecuniary loss because they were forced to defend against the misrepresentations in the ultimately dismissed foreclosure action. The plaintiffs, however, were in the position of having to defend against the foreclosure action because as their allegations necessarily imply, there was an indebtedness that had been defaulted on. The plaintiffs have, therefore, failed to allege that any loss suffered was solely a result of alleged misrepresentations, rather than as a result of the default and the foreclosure action. See Glazer v. Dress Barn, Inc., supra, 274 Conn. 77-78 (" plaintiffs cannot prevail on this claim because they have failed to prove that they suffered a loss as a result of these misrepresentations, rather than as a result of the loss of financing").
The court grants the defendant's motion to strike count thirteen of the plaintiffs' second amended complaint.
V. Count Fourteen: Intentional Infliction of Emotional Distress
The defendant moves to strike count fourteen of the plaintiffs' second amended complaint alleging a claim for intentional infliction of emotional distress, arguing that (1) a legally cognizant claim of intentional infliction of emotional distress cannot be based on the threat of property loss, and (2) the plaintiffs have failed to allege extreme and outrageous conduct. The defendant also argues that the plaintiffs' claim of emotional distress derives from a self-inflicted threat of property loss, namely, their defaulting on their mortgage. The plaintiffs counter that their claim is not based on property damage but is based on the defendant bringing and maintaining a foreclosure action without probable cause, that if not defended, could have resulted in the loss of their personal residence. The plaintiffs further argue that the allegations that the defendant brought the foreclosure action maliciously, without probable cause, and for an improper purpose, taken together, support a finding that the defendant's conduct was extreme and outrageous so as to be considered atrocious.
" In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Citation omitted; footnote omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003). " The threshold inquiry in an intentional infliction of emotional distress action is . . . whether the alleged behavior is sufficiently extreme and outrageous." DiTeresi v. Stamford Health System, Inc., 142 Conn.App. 72, 87, 63 A.3d 1011 (2013). " Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 443.
There is no direct appellate authority dealing with a claim for intentional infliction of emotional distress whereby the claim asserted is for distress arising from the loss of, or damage to, property. The Appellate Court in Myers v. Hartford, 84 Conn.App. 395, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004), however, noted that " [o]ur common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to . . . property . . ." Id., 402. Intentional infliction of emotional distress claims have been stricken where based solely on the loss of, or damage to, property. See Costello v. Yale New Haven Health Services Corp., Superior Court, judicial district of Fairfield, Docket No. CV-13-6032324-S (December 13, 2013, Sommer, J.) (57 Conn.L.Rptr. 291, ), aff'd, 161 Conn.App. 600, 128 A.3d 607 (2015) (striking claim based on loss of plaintiffs' deceased mother's rings while in intensive care unit at hospital); Blue v. Renassance Alliance, Superior Court, judicial district of New Haven, Docket No. CV-54-001949-S, (May 12, 2006, Shluger, J.) (striking claim based on loss of personal belongings destroyed in fire at residence). Similarly, " [e]very Superior Court case that has addressed negligent infliction of emotional distress claims where the only damage was to property . . . has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property." Goldstein v. Rapp, Superior Court, judicial district of New London, Docket No. CV-10-4010224-S (October 15, 2010, Martin, J.) (50 Conn.L.Rptr. 779, 781, ); but see Duffy v. Wallingford, 49 Conn.Supp. 109, 123, 862 A.2d 890 (2004) (denying defendant's motion for summary judgment because claim did not arise solely from damage to property but also from response to offensive exposure and continuing risk of exposure to raw sewage).
See, e.g., Birbarie v. C& H Shoreline, LLC, Superior Court, judicial district of New Haven, Docket No. CV-14-6045884-S, (September 22, 2014, Nazzaro, J.) (striking negligent infliction of emotional distress where allegations of emotional distress inextricably linked to property loss because solely arise from breach of bailment contract, defendant's manner while working on project, and loss of sentimental possessions); Fasano v. Caprio, Superior Court, judicial district of New Haven, Docket No. CV-10-6014443-S (June 28, 2011, Woods, J.) (52 Conn.L.Rptr. 119, ) (claim derives solely from loss of jewelry).
In the present case, the plaintiffs allege that the defendant knew or should have known that emotional distress was likely to result from bringing the foreclosure action without probable cause and failing to produce the original note and other required paperwork during the mediation process, despite a court order to do so. The plaintiffs further allege that this conduct, taken together with the allegation that the purpose of the foreclosure action was to humiliate, embarrass, and/or oppress the plaintiffs, is sufficiently extreme and outrageous. Nonetheless, the court cannot characterize these acts as extreme and outrageous. The defendant's decision to bring the foreclosure action without verifying the status of the note or ensuring all the necessary paperwork was in order, and its failure to timely submit certain paperwork, causing a delay in the mediation process, may have been a lapse in good judgment or care, and may have been distressing to the plaintiffs, but it simply is not so atrocious as to subject the defendant to liability for intentional infliction of emotional distress. See Carrol v. Allstate Ins. Co., supra, 262 Conn. 444 (" as distressing as this insurance investigation may have been to the plaintiff . . . it simply was not so atrocious as to trigger liability for intentional infliction of emotional distress" [emphasis in original]); see also Cosme v. Bank of America, N.A., Superior Court, judicial district of Tolland, Docket No. CV-14-6007738-S, (September 30, 2014, Sferrazza, J.) (failing to verify accuracy of communication may have been inadvertent and negligent, but single lapse of good care and judgment cannot satisfy atrociousness requirement). This is especially true in light of the fact that the plaintiffs do not dispute defaulting on their mortgage and, therefore, the defendant could rightfully foreclose on the same. Additionally, the plaintiffs have not pleaded any facts to support their allegation that a purpose in bringing the foreclosure action was to humiliate, embarrass, and/or oppress them. The mere use of buzz words or legal conclusions are insufficient to overcome a motion to strike. See Faulkner v. United Technologies Corp., supra, 240 Conn. 588.
Finally, the plaintiffs have not alleged any harm or distress suffered that is not directly linked to the foreclosure action and the threat of losing their home. Thus, the plaintiffs' allegations concerning their emotional distress solely arise from the defendant allegedly bringing the foreclosure action without probable cause, the defendant's actions during the mediation process, and the potential loss of their home to foreclosure and, therefore, their alleged distress is inextricably linked to the threat of property loss. Accordingly, the plaintiffs do not sufficiently allege a claim for intentional infliction of emotional distress. The defendant's motion to strike count fourteen of the plaintiffs' second amended complaint is granted.
VI. Count Sixteen: Negligent Infliction of Emotional Distress
The defendant moves to strike count sixteen of the plaintiffs' second amended complaint, arguing that the plaintiffs have failed to allege sufficient facts to establish the duty and foreseeability elements of a negligent infliction of emotional 'distress claim. The plaintiffs counter that they have alleged that the defendant owed them a duty and that the allegations, taken together, constitute conduct that would create an unreasonable risk of causing emotional distress.
" To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).
" [I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." Carrol v. Allstate Ins. Co., supra, 262 Conn. 446. Our Supreme Court has further reasoned that this " essentially requires that the fear or distress experienced by [a plaintiff] be reasonable in light of the conduct of the [defendant]. If such a fear were reasonable . . . the [defendant] should have realized that [its] conduct created an unreasonable risk of causing distress, and [it], therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the [defendant's] conduct, the [defendant] would not have recognized that [its] conduct could cause this distress and, therefore, [it] would not be liable." (Internal quotation marks omitted.) Id., 447. This foreseeability inquiry is narrower and " differs from the standard foreseeability of the risk of harm requirement for negligence liability . . . in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery." (Internal quotation marks omitted.) DiTeresi v. Stamford Health System, Inc., supra, 142 Conn.App. 80.
Additionally, it has been held that the existence of a duty is a key component of a negligent infliction of emotional distress claim. See, e.g., Browne v. Kommel, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-5006167-S (July 14, 2009, Pavia, J.) (48 Conn.L.Rptr. 248, ) (finding negligent infliction of emotional distress claim requires direct duty between parties to be viable); Torniero v. Allingtown Fire District, Superior Court, judicial district of New Haven, Docket No. CV-06-5006174-S (March 17, 2008, Robinson, J.) (45 Conn.L.Rptr. 298, ) (finding proof of existence of duty is required element); see also Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002); DiTeresi v. Stamford Health System, Inc., supra, 142 Conn.App. at 73 (discussing relationship between duty and foreseeability elements of negligent infliction of emotional distress claim). Finally, " there is no logical reason for making a distinction, for the purposes of determining liability, between those cases where the emotional distress results in bodily injury and those cases where there is emotional distress only . . . The only requirement is that the distress might result in illness or bodily harm." (Citation omitted; emphasis in original; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 448.
In the present case, the central allegations of the plaintiffs' negligent infliction of emotional distress claim are that the defendant attempted to enforce the note in the foreclosure action even though it knew or should have known that it was not the holder of the note, had no probable cause to do so, and failed to comply with a court order to provide certain documents. As previously discussed, the requirements under § 49-31l to submit certain paperwork during the mediation process and the subsequent court order instructing the defendant to comply with this statute did not impose a duty that would support a claim for negligent infliction of emotional distress. Even if these facts gave rise to a duty, the plaintiffs' claim would still fail because the foreseeability element has not been sufficiently pleaded.
The plaintiffs' argument that the risk of distress was foreseeable because the defendant knew or should have known it lacked probable cause to bring the foreclosure action is without merit, because as previously discussed, the plaintiffs' allegations necessarily imply there was a debt owed. Moreover, the plaintiffs allege throughout their second amended complaint that the foreclosure action was dismissed in their favor . See e.g., Compl., Ct. 1 ¶ 25. Similarly, the distress alleged by the plaintiffs cannot be construed as reasonable in light of the defendant's alleged conduct during the foreclosure action, which essentially amounts to the procedural mishandling of a foreclosure action, i.e., errors in the handling of certain paperwork on the part of the defendant and, therefore, the defendant would not have realized that it could cause this distress. Cf. Topolski v. Bank of America, Superior Court, judicial district of Tolland, Docket No. CV-13-5005789, (May 16, 2014, Sferrazza, S.J.) (distinguishing case from Carrol v. Allstate Ins. Co., where emotional distress generated by unjustified accusations of criminal activity, not merely from delay in payment of insurance proceeds).
Additionally, the plaintiffs do not describe any harm suffered, but they simply state the legal conclusion that the distress caused by the defendant's conduct resulted in pain and suffering, illness, and bodily harm. See Compl., Ct. 16 ¶ 59. Even construing the complaint broadly, this harm is inextricably linked to the threat of losing their property and, therefore, cannot serve as the basis for a negligent infliction of emotional distress claim. See Birbarie v. C& H Shoreline, LLC, supra, Superior Court, Docket No. CV-14-6045884-S, .
In light of there being no allegations of distress that was reasonable or conduct that the defendant should have realized caused an unreasonable risk of distress, the plaintiffs have insufficiently pleaded a cause of action for negligent infliction of emotional distress.
Accordingly, the defendant's motion to strike count sixteen of the plaintiffs' second amended complaint is granted.
VII. Count Eighteen: CUTPA
The defendant lastly moves to strike count eighteen of the plaintiffs' second amended complaint arguing that it did not act unfairly or deceptively, and that the plaintiffs have not alleged any ascertainable loss pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiffs counter that they have sufficiently pleaded CUTPA allegations and repeat their previous allegations regarding the defendant's conduct. The plaintiffs further argue that the defendant's conduct caused them to incur costs, both for the defense of the foreclosure, as well as the increased costs owed under the note because of interest and late charges.
General Statutes § 42-110b(a) provides: " No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." " The banking industry is governed by CUTPA." Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 27, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005). General Statutes § 42-110(g) provides in relevant part: " Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . ." " The ascertainable loss requirement [of § 42-110g] is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation . . . [T]he ascertainable loss provision [however] do[es] not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case . . . [A]n ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed, or established . . . [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known . . . Under CUTPA, there is no need to allege or prove the amount of the actual loss." (Citations omitted; emphasis in original; internal quotation marks omitted.) Marinos v. Poirot, 308 Conn. 706, 713-14, 66 A.3d 860 (2013).
In the present case, the plaintiffs allege they suffered a loss of income, harm to their credit report, and incurred expenses in consulting and hiring an attorney to defend them in the foreclosure action. It should be noted that expenses incurred by a party in consulting and/or hiring an attorney have not been recognized as constituting an ascertainable loss under CUTPA. See Donovan v. Mario D'Addario Buick, Inc., Superior Court, judicial district of Waterbury, Docket Nos. CV-06-5002938-S, CV-07-5005905-S, (March 4, 2009, Brunetti, J.) (noting dicta in Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 685, 657 A.2d 1087 [1995] raises doubts whether such expenses are recoverable under CUTPA); see also Jones v. Midland Funding, LLC, 755 F.Supp.2d 393 (D.Conn. 2010) (" expenses incurred by the plaintiff in consulting an attorney and bringing this suit do not constitute ascertainable loss under CUTPA"). Courts are given discretion under specific provisions of CUTPA to compensate plaintiffs for litigation expenses, provisions that would be superfluous if attorneys fees constituted a compensable ascertainable loss. See Donovan v. Mario D'Addario Buick Inc., supra . Also, the plaintiffs have failed to allege that any loss of income, harm to their credit rating, or increased fees and interest due on their mortgage was a result of any alleged unfair or deceptive practice considering that any harm suffered by the plaintiffs is inextricably linked to the fact that they defaulted on their mortgage. As the plaintiffs have failed to overcome the threshold barrier requiring a party to allege that they have suffered an ascertainable loss, the plaintiffs have not sufficiently pleaded a successful CUTPA action against the defendant.
General Statutes § 42-110g(d) provides in relevant part: " [T]he court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees . . ." (Emphasis added.)
The court grants the defendant's motion to strike count eighteen of the plaintiffs' second amended complaint.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to strike in its entirety.