Foreclosure Frivolity Aside, The Rule of Law Applies: Connecticut Appellate Court Side with Pro Se Litigant

Syllabus

The defendant property owner appealed from the trial court’s judgment granting the plaintiff’s application for execution of ejectment after the court had previously rendered a judgment of strict foreclosure on certain real property.

The defendant claimed, inter alia, that the court erroneously ordered the execution of ejectment because title had not yet vested in the plaintiff.

Held:

The trial court erroneously granted the plaintiff’s application for execution of ejectment, as, although the court had previously issued an order granting the plaintiff’s motion to terminate a then existing appellate stay, the court did not clearly indicate an intent to prospectively terminate future automatic appellate stays and, therefore, an automatic appellate stay pursuant to the rule of practice (§ 61-11) was in effect following the defendant’s filing of his previous appeal, the law days had passed without legal effect, and absolute title to the property had not yet vested in the plaintiff at the time the court ordered the execution of ejectment.

Argued February 14—officially released April 1, 2025

Procedural History

Action to foreclose a mortgage on certain real property, and for other relief, brought to the Superior Court in the judicial district of Litchfield, where the defendant Kathleen M. O’Brien et al. were defaulted for failure to appear; thereafter, the matter was tried to the court, Hon. John W. Pickard, judge trial referee; judgment of strict foreclosure; subsequently, the court, Lynch, J., granted the plaintiff’s motion to substitute U.S. Bank, National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust as party plaintiff; thereafter, the named defendant appealed to this court, Keller, Bright and Bishop, Js., which affirmed the judgment of the trial court; subsequently, the court, Roraback, J., granted the substitute plaintiff’s motion for execution of ejectment, from which the named defendant appealed to this court.

Reversed; judgment directed; further proceedings.

Mark E. O’Brien, self-represented, the appellant (named defendant).

Jeffrey M. Knickerbocker, for the appellee (substitute plaintiff).

Opinion

WESTBROOK, J.

In this mortgage foreclosure action, the defendant Mark E. O’Brien1 appeals from the judgment of the trial court ordering an execution of ejectment with regard to the foreclosed property.2

The court concluded that the execution of ejectment could issue because all law days had passed during the pendency of the defendant’s prior appeal in this matter and no appellate stay was in effect at that time due to a prior trial court order that purportedly had prospectively terminated any existing and future automatic appellate stays in this matter.

Therefore, the court determined that title to the foreclosed property and the right of possession had vested in the substitute plaintiff, U.S. Bank, National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust.3

The defendant claims

1 The complaint named as additional defendants Kathleen M. O’Brien, Thomas J. O’Brien, and the State of Connecticut, Department of Revenue Services.

These additional defendants did not appear before the trial court or participate in the present appeal.

Accordingly, all references to the defendant are to Mark E. O’Brien only.

2 An appeal ordinarily will not lie from an execution of ejectment once a possessory right to property has been conclusively established, whether through summary process eviction or by way of foreclosure, because such an execution merely effectuates a final judgment of possession.

In the present case, however, the execution of ejectment was ordered by a court in the context of proceedings in which the issue of whether title had passed by operation of law remained a contested issue.

Given that unique procedural posture, this appeal is properly before us.

See Cathedral Green, Inc. v. Hughes, 174 Conn. App. 608, 610 n.2, 166 A.3d 873 (2017).

3 The original plaintiff, U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, assigned the subject mortgage to the substitute plaintiff in October, 2021, and the court granted a motion to substitute the substitute plaintiff as the party plaintiff on February 23, 2022.

that the court misconstrued the prior trial court’s order terminating the appellate stay; an appellate stay was in effect when the latest law days passed; and, accordingly, title never vested in the substitute plaintiff, and the execution of ejectment was premature and violated his right to due process.

For the reasons that follow, we agree with the defendant, reverse the judgment of the court, and remand the case with direction to vacate the execution of ejectment and to set new law days.4

The record reveals the following relevant facts and procedural history.

The original plaintiff, U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, commenced the present action in October, 2016, to foreclose a mortgage on real property in Winsted that the defendant and other heirs had inherited following the death of Caroline S. O’Brien, who executed the mortgage at issue.

The defendant filed an appearance as a self-represented party and an answer and a counterclaim.

In December, 2017, the court, Hon. John W. Pick- ard, judge trial referee, granted the original plaintiff’s motion for summary judgment as to the counterclaim.

Thereafter, on May 20, 2019, following a trial on the foreclosure complaint, the court rendered a judgment of strict foreclosure.

The defendant appealed from the judgment of strict foreclosure, and, on March 10, 2020, this court issued a memorandum decision affirming the judgment and remanding the case for the purpose of setting new law days, which had passed during the pendency of the appeal.

See U.S. Bank Trust, N.A. v. O’Brien, 196 Conn. App. 903, 225 A.3d 1250, cert. denied, 335 Conn. 922, 233 A.3d 1090 (2020), cert. denied, U.S.  , 141 S. Ct. 1514, 209 L. Ed. 2d 253 (2021).

4 Because we reverse the judgment of the court on this basis, we decline to address the defendant’s additional claims that, even if there were an order prospectively terminating all existing and future appellate stays, the court lacked the authority to issue such an order and the order was improper because it was not issued by the judge who initially tried this matter.

As previously noted, in February, 2022, the court granted the original plaintiff’s motion to substitute party plaintiff.

See footnote 3 of this opinion.

The substitute plaintiff then moved for an order modifying the judgment of foreclosure and resetting the law days, which the court, J. Moore, J., granted on April 25, 2022.

The court set the law days to commence on June 6, 2022.

On May 6, 2022, the defendant filed a motion asking the court to open the judgment of foreclosure, dismiss the complaint, and extend the law days (motion to open).

According to the defendant, both the original and substitute plaintiffs lacked standing to prosecute the foreclosure action, and the mortgage servicers improperly had interfered with the defendant’s efforts to modify the mortgage.

The substitute plaintiff filed a memorandum in opposition to the motion to open.

The court denied the motion to open on June 6, 2022, but stated in its order that it was extending the law days to June 27, 2022, ‘‘to provide the [defendant] with the twenty day appellate period. ’’

The defendant timely filed his second appeal in this matter on June 22, 2022, challenging the denial of his motion to open.

That appeal gave rise to an automatic stay that prevented the June 27, 2022 law days from passing.

On June 27, 2022, the substitute plaintiff timely filed a motion to dismiss the second appeal as frivolous.

The substitute plaintiff also filed a motion asking the trial court to terminate the existing appellate stay and ‘‘any future automatic stays on appeal.’’

The defendant filed a memorandum in opposition to the motion to terminate stay.

On August 1, 2022, following a remote hearing, the court issued an order generically stating that the substi- tute plaintiff’s motion to terminate stay was granted ‘‘for the reasons set forth on the record’’ and that the signed transcript of its decision shall constitute the court’s memorandum of decision on the motion.

The transcript reflects that the court did not clearly indicate during the hearing whether it intended to grant the motion only with respect to the then existing appellate stay or also as to any future appeals, stating in relevant part:

‘‘So, in balancing the equities, the court reaches the conclusion that [the] due administration [of] justice does require the court to grant the motion to terminate the appellate stay in this case.’’ (Emphasis added.)

Neither party asked the court for clarification of its August 1, 2022 order granting the motion to terminate stay or filed a motion for review of that order with this court.

See Practice Book §§ 61-14 and 66-6.

On September 7, 2022, this court granted the substitute plaintiff’s motion and dismissed the defendant’s second appeal as frivolous.5

Following our dismissal of the second appeal, the substitute plaintiff filed a motion asking the trial court to again reset the law days and to award additional attorney’s fees.

The trial court, Roraback, J., granted that motion on March 20, 2023, ordering law days to commence on May 1, 2023.

On March 23, 2023, the defendant filed his third appeal in this matter.

The substitute plaintiff once again filed a motion to dismiss the appeal, and this court granted the motion and dismissed the appeal as frivolous by order dated April 26, 2023.

The defendant filed a petition for certification to appeal with our Supreme Court, which denied certification on September 26, 2023.

5 The defendant did file a motion asking this court to ‘‘issue a stay of proceedings in the Superior Court until this appeal has been weighed on the merits.’’

That motion did not address the appropriateness of a prospective termination of the appellate stay in future appeals, presumably because the defendant did not construe the court’s order as encompassing future appeals.

At the time this court dismissed the second appeal as frivolous, it ordered no action necessary on the defendant’s motion for a stay.

On December 26, 2023, the substitute plaintiff filed a motion once again asking the trial court to set new law days.

Two days later, however, the substitute plaintiff withdrew that motion, and, on January 3, 2024, it filed an application for an execution of ejectment regarding the subject property.6

The defendant filed a memorandum in opposition to the proposed execution of ejectment, arguing that the law days that had been set to commence on May 1, 2023, were stayed by the filing of his third appeal and, as a result, passed without legal effect.

Consequently, the defendant argued, title to the subject property could not have vested in the substitute plaintiff.

On February 8, 2024, the substitute plaintiff filed a memorandum in support of the proposed execution of ejectment, arguing that the trial court, on August 1, 2022, previously had granted the substitute plaintiff’s motion for a prospective termination of any future appellate stays.

Also on February 8, 2024, the defendant filed a motion to open and vacate the foreclosure judgment.

Judge Roraback conducted a hearing concerning the proposed execution of ejectment on February 9, 2024.

After hearing argument from the parties, the court concluded that title to the property had vested in the substitute plaintiff and that the execution of ejectment should issue.

On February 14, 2024, the court issued orders denying the defendant’s motion to open and vacate the foreclosure judgment and granting the proposed execution of ejectment, stating:

‘‘The court orders that the ejectment be stayed until May 1, 2024. No further extensions of the execution of ejectment shall be granted absent extraordinary and unforeseeable circumstances.’’

This appeal followed.7

6 The application listed November 6, 2023, as the ‘‘[d]ate titled was trans- ferred.’’

7 The substitute plaintiff timely moved to dismiss the present appeal as frivolous.

It argued that the trial court carried out a ministerial act by issuing an execution of ejectment.

The defendant objected to the motion to dismiss, arguing that there is a good faith dispute as to whether title to the property vested in the substitute plaintiff. 

This court denied the motion to dismiss and further ordered sua sponte that the trial court’s February 14, 2024 orders were automatically stayed pursuant to Practice Book § 61-11 (a).

The defendant claims on appeal that the trial court misconstrued the August 1, 2022 order granting the substitute plaintiff’s motion to terminate the appellate stay ‘‘in this case’’ as having terminated prospectively all future appellate stays in this matter.

Thus, according to the defendant, and contrary to the conclusion of the court, an appellate stay was in full force and effect when the most recent law days in this matter passed, and, accordingly, title never vested in the substitute plaintiff.

We agree with the defendant and, therefore, also agree that the court improperly determined that the execution of ejectment could issue.

We begin by setting forth governing principles of law and our standard of review.

‘‘In Connecticut, the passage of the law days in an action for strict foreclosure extinguishes a mortgagor’s equitable right of redemption and vests absolute title in the encumbrancer.’’

U.S. Bank National Assn. v. Rothermel, 339 Conn. 366, 375, 260 A.3d 1187 (2021).

Provided that an automatic appellate stay of execution is in effect; see Practice Book § 61-11; ‘‘[l]aw days are ineffective while the appeal period is pending. To conclude otherwise would be tantamount to depriving a party of judicial review and, therefore, of due process of law.’’

Continental Capital Corp. v. Lazarte, 57 Conn. App. 271, 273–74, 749 A.2d 646 (2000).

A trial court’s determination of whether an appellate stay was in effect raises a question of law over which we exercise plenary review.

See Quicken Loans, Inc. v. Rodriguez, 227 Conn. App. 806, 817, 324 A.3d 167 (2024), cert. denied, 351 Conn. 905, 330 A.3d 133 (2025).

Moreover, to the extent that our review also requires us to construe the meaning of a prior judgment or order of the court, this also presents an issue over which our review is plenary.

See Cunningham v. Cunningham, 204 Conn. App. 366, 373, 254 A.3d 330 (2021).

‘‘As a general rule, judgments are to be construed in the same fashion as other written instruments.

The determinative factor is the intention of the court as gathered from all parts of the judgment.

The interpretation of a judgment may involve the circumstances surrounding the making of the judgment.   Effect must be given to that which is clearly implied as well as to that which is expressed.

The judgment should admit of a consistent construction as a whole.’’

(Internal quotation marks omitted.) Id.

Having carefully reviewed the transcript of the August 1, 2022 hearing, which the trial court indicated in its order granting the substitute plaintiff’s motion to terminate the appellate stay contained the reasoning for that ruling, we conclude that the court’s statements during the hearing do not clearly convey whether the court intended to terminate only the appellate stay then in effect or to terminate any and all appellate stays, including those that might arise in the future.

At the hearing, the trial court stated only that it had balanced the equities involved and determined that the due administration of justice required it ‘‘to grant the motion to terminate the appellate stay in this case.’’ (Emphasis added.)

The trial court’s language, particularly its use of the phrase ‘‘in this case,’’ is, at best, ambiguous as to whether the court meant to eliminate only the existing stay or the possibility of a stay in the event of a future appeal.

Nothing in the court’s discussion during the hearing indicates that it even contemplated whether granting prospective relief from a future stay was necessary or justified under the circumstances.

The termination of any appellate stay can have significant consequences for litigants, but this is particularly true in foreclosure matters in which the effect of lifting a stay can result in an effectively irreversible divestiture of title to real property.

See, e.g., General Statutes § 49- 15

(generally limiting court’s authority to alter judgment of strict foreclosure after title has become absolute in any encumbrancer).

If the law days pass before appellate review of the defendant’s claims can occur, the appeal will likely become moot because title has passed irrevocably and an appeals court may not grant the defendant any further relief except in rare circumstances.

See U.S. Bank National Assn. v. Rothermel, supra, 339 Conn. 375.

Indeed, the prospective termination of the appellate stay arising in all future appeals is an extraordinary remedy because it necessarily presumes that any challenge to future orders of the court would be meritless despite the lack of present knowledge regarding whether the orders might have any basis in law or fact.

In light of these concerns, if a court concludes that the due administration of justice warrants prospectively terminating any and all future stays, it must do so expressly and with unequivocal language.

This requirement will ensure that a defendant is on notice that he must seek further relief from this court to avoid the running of the law days before his appellate claims can be adjudicated.

Moreover, it will facilitate our review, if requested, of the court’s decision to provide a plaintiff with relief from an appellate stay.

See Practice Book § 61-14.

Given the equitable nature of foreclosure proceedings, any ambiguity in the court’s decision to terminate prospectively appellate stays in future appeals should be resolved in favor of the default rule that an automatic stay of execution arises from the filing of a timely appeal.

Because the court did not clearly indicate an intent to grant fully the relief sought by the substitute plaintiff in its motion, we are compelled to conclude that the court’s order did not prospectively terminate future automatic appellate stays.

Given that conclusion, it follows that an automatic appellate stay was in effect following the court’s March 20, 2023 decision modifying the judgment of strict foreclosure and setting law days to commence on May 1, 2023.

See Practice Book § 61-11 (a).

The appellate stay continued in effect following the defendant’s filing of his third appeal on March 24, 2023; see Practice Book § 61-11 (a); through this court’s dismissal of the third appeal as frivolous on April 26, 2023; see Practice Book § 61-11 (a); and until our Supreme Court’s September 26, 2023 denial of the defendant’s petition for certification to appeal.

At that point, the May 1, 2023 law days had passed without legal effect, necessitating the need for the setting of new law days before title to the property could pass to the substitute plaintiff.

Because absolute title to the property has not yet vested in the substitute plaintiff, an execution of ejectment was premature, and the court’s ruling to the contrary cannot stand.

The judgment is reversed and the case is remanded with direction to vacate the execution of ejectment and to set new law days.

In this opinion the other judges concurred.

RULING ON MOTIONS TO DISMISS

Plaintiff Mark E. O’Brien brings this action against Defendants Rushmore Loan Management Services, LLC (“Rushmore”), Caliber Home Loans, Inc. (“Caliber”), Fay Servicing, LLC (“Fay Servicing”), John P. Grayken, Lone Star Global Acquisitions, Ltd. (d/b/a/ Lone Star Funds) (“Lone Star”), and U.S. Bancorp (d/b/a U.S. Bank Trust, NA and U.S. Bank, NA) (“U.S. Bancorp”).1

Plaintiff, who is representing himself, seeks damages, injunctive relief,

1 Plaintiff asserts that “U.S. Bank Trust, N.A., and U.S. Bank, N.A. are separate subsidiaries of U.S. Bancorp.” ECF No. 67 at 41.

I will thus address U.S. Bank Trust, N.A. (“U.S. Bank Trust”) and U.S. Bank, N.A. (“U.S. Bank”) separately throughout this ruling.

and “reasonable legal fees” for the prosecution of this suit.2

Defendant Grayken now moves to dismiss the claims against him under Rule 12(b)(5) of the Federal Rules of Civil Procedure, and Defendants Rushmore, Caliber, and Fay Servicing (collectively, the “Servicer Defendants”) move to dismiss under Rule 12(b)(6).

For the reasons explained below, Defendants’ motions to dismiss are granted.

I.                   BACKGROUND

A.     Factual Background

The following facts are drawn from Plaintiff’s second amended complaint (“the complaint”) and the attached exhibits.3

ECF No. 67.

These facts are accepted as true for the purpose of this motion.

I note, however, that Plaintiff’s complaint is very long and very difficult to follow.

His allegations are disorganized and at times appear contradictory; he refers to parties, including himself, in inconsistent and unclear ways; many of his allegations pertain to entities who are not parties to this case or appear otherwise to be unrelated to this case; and Plaintiff’s

2 Although the second amended complaint states that Plaintiff is “licensed in several federal jurisdictions,” he provides no bar number of any court in his signature block and does not indicate whether the license he holds is a license to practice law.

See ECF No. 67 at 66.

Further, Defendants have treated Plaintiff as a pro se litigant and given him notice of the requirements for pressing a motion to dismiss.

See, e.g., ECF No. 33-3.

Under these circumstances, I will treat Plaintiff as a pro se and afford him the procedural leeway that courts must provide to such litigants in the Second Circuit.

3 “In considering a motion to dismiss…a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.”

Newman Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir. 1996).

claims are not numbered or clearly delineated.

I have done my best to make sense of Plaintiff’s claims and to construe his allegations favorably to him.

1.                  The Parties, Mortgage, and State Court Proceedings

Mark E. O’Brien is a resident of Connecticut.

Id. at 3.

His mother, Caroline S. O’Brien, secured a $50,000 home equity line of credit (“the mortgage”) with Fleet Bank for property at 114 Wetmore Avenue, Winsted, Connecticut (“the property”).

Id. at 5.

Mrs. O’Brien died in 2009, and Plaintiff is a “successor-in-interest” to the property.

Id.

In July 2016, after Fleet Bank merged with Bank of America, the mortgage was assigned to U.S. Bank Trust “as Trustee for [the] LSF9 Master Participation Trust” (“the LSF9 Trust”).

Id. at 5-6.

The LSF9 Trust is maintained by Lone Star.

Id.

Lone Star is a private equity fund that focuses on real estate investments and which was founded and is owned by John P. Grayken. Id. at 7. Caliber acted as “attorney-in-fact” for Bank for America for this assignment and became the servicer of the mortgage on April 26, 2016. Id. at 7, 18. During this time, Caliber was owned by Lone Star. Id. at 7, 11, 21.

On October 24, 2016, U.S. Bank Trust brought a foreclosure action against Mrs. O’Brien’s successors-in-interest in Connecticut Superior Court. Id. at 8. The case was subsequently appealed to the Connecticut Appellate Court and Connecticut Supreme Court. Id.

at 19, 28.4 It was then appealed to the United States Supreme Court, which denied certiorari on March 8, 2021. Id.

On January 24, 2021, while Plaintiff’s appeal before the United States Supreme Court was pending, Plaintiff and the other foreclosure defendants submitted a “complete loss mitigation application” to Caliber. Id. at 21.

The application was sent again by email on January 29, 2021, after an agent for Caliber informed Plaintiff that the application was not “in the system.”

Id.

By this time, Caliber had formally recognized Plaintiff as a successor-in-interest.

Id. at 23, 25.

On February 25, 2021, Caliber sent Plaintiff a “good-bye” letter thanking Plaintiff for being one its customers, and on March 19, 2021, the mortgage was transferred to Fay Servicing.

Id. at 21.

According to a Caliber spokesman, Plaintiff’s loss mitigation application had not been acted upon before the mortgage was transferred.

Id.

Fay Servicing did not review the loss

4 The complaint does not provide the names or docket numbers for the state court foreclosure proceedings or Plaintiffs’ subsequent appeals, but Defendants have attached documents from the state court litigation to their briefs.

I can take judicial notice of these filings and orders when deciding the present motions.

See Musciotto v. Nardelli, No. 3:19-CV-559 (KAD), 2019 WL 5086691, at *2 (D. Conn. Oct. 10, 2019) (“In deciding a motion to dismiss, the Court may take judicial notice of public records such as pleadings, orders, judgments, and other documents from prior litigation, including state court cases.”).

These documents show that the Connecticut Superior Court for the Judicial District of Litchfield at Torrington entered a judgment of strict foreclosure on May 20, 2019, ECF No. 74-9;

the Connecticut Appellate Court entered an order affirming the trial court’s judgment on March 10, 2020, ECF No. 74-11;

Plaintiff sought reconsideration, which was denied by the Appellate Court on April 15, 2020, ECF No. 74-12;

and the Connecticut Supreme Court denied Plaintiff’s petition for certification on June 10, 2020, ECF No. 84-9.

mitigation application submitted by Caliber and instead requested new documentation from Plaintiff.

Id. at 21-23.

On June 15, 2021, the mortgage was transferred again—this time, from Fay Servicing to Rushmore.

Id. at 22.

Fay Servicing told Plaintiff that the only thing that would change about his mortgage loan was who would be collecting his mortgage loan payments.

Id.

After servicing rights were transferred, Plaintiff contacted Rushmore to inquire about the complete loss mitigation application that he had previously submitted to Caliber.

Id. at 23.

Rushmore said that it could not discuss the loan with Plaintiff until he proved his status as successor-in-interest.

Id.

Plaintiff sent documentation, including deeds for the property and a copy of his driver’s license, to Rushmore.

Id.

He was eventually approved by Rushmore as a bona fide successor-in-interest, but was then told that this had been a mistake.

Id.

Rushmore revoked his status as a successor- in-interest and then asked him to resend various documents, including Mrs. O’Brien’s death certificate, deeds, and copies of drivers’ licenses.

Id.

These actions were meant to frustrate Plaintiff’s efforts to obtain a loan modification.

Id. at 24.

Plaintiff protested Rushmore’s “runaround” at a Connecticut Superior Court hearing.

Id.

Rushmore’s counsel said that Plaintiff should call “Bendett & McHugh, PC,” “the servicer’s law firm,” to address any difficulties he was having.

Id.

After the hearing, Plaintiff asked Rushmore’s counsel to advise his client that Plaintiff was a successor-in-interest to the property.

Id.

Rushmore’s counsel declined to do so, and Rushmore representatives continued to refuse to discuss the loan with Plaintiff.

Id. at 25.5

On October 21, 2021, U.S. Bank Trust assigned the mortgage to U.S. Bank “as Legal Title Trustee for [the] Truman 2016 SC6 Title Trust” (the “Truman Trust”).

Id. at 26.

An attorney from the Bendett & McHugh law firm then moved to substitute U.S. Bank into the foreclosure proceedings. Id. Though Plaintiff and the other foreclosure defendants were not served a copy of this motion, the Connecticut Superior Court granted it.

Id. at 27-28.

An Order of Ejectment has since been issued in the state court foreclosure proceedings.

Id. at 9, 29.

At the time of Plaintiff’s complaint, that order was stayed and “under appeal.”

Id.

Plaintiff contends that the Order of Ejectment was based on a “misreading” of a previous state court order.

Id. at 29.

2.                  The Alleged Foreclosure Fraud

After the United States Supreme Court denied certiorari, Plaintiff commissioned a report from William Paatalo, a private investigator who investigates foreclosure fraud and related issues.

Id. at 9, 19.

Plaintiff did not know that he could commission such a report at the time of

5 I pause here to note that if what Plaintiff describes, as recounted in the last few paragraphs, is true, then I can readily understand his frustration with the Defendants, their lawyers, and the mortgage servicing business in general.

But however reasonable his frustration may be, the law requires me to dismiss his claims unless they satisfy the requirements that I describe below.

the foreclosure action, and neither he nor the other foreclosure defendants could have afforded to do so at that time.

Id.

This report (“the Paatalo report”) and other sources show that the LSF9 Trust was a “make-believe Trust” that did not hold any assets and “d[id] not legally exist.”

Id. at 8-9; see also id. at 9-20, 33-34, 37-40.

The LSF9 Trust was closed in July 2014—two years before the mortgage was transferred to U.S. Bank Trust—and there were missing parties in the mortgage chain of title.

Id. at 5-6, 12-13, 39.

The July 2016 mortgage assignment was thus “fraudulent,” and an entity other than U.S. Bank Trust owned the mortgage at the time of the foreclosure proceedings.

Id. at 8, 14, 20, 22, 36-41.

U.S. Bank Trust knew that it did not own the mortgage and thus did not have standing to bring the foreclosure action against Plaintiff, but it did so anyways.

Id. at 8, 14, 40-41.

Further, the “lost note affidavit” on which U.S. Bank Trust relied in the foreclosure proceedings was not properly notarized.

Id. at 19-20.

The October 2021 assignment-of-mortgage to U.S. Bank, as trustee of the Truman Trust, was likewise invalid.

Id. at 27-30, 40.

Though the Truman Trust has represented to Plaintiff and other homeowners, by mail and electronically, that it owns their mortgages, it does not.

Id. at 32-33.

Nor does it have standing to foreclose on the property at issue in this case.

Id.

Plaintiff and the other foreclosure defendants suffered emotional distress as a result of their frustrated efforts to obtain a loan modification from the defendant loan servicers and from “not knowing when their home would be taking away to the exclusion of due process.”

Id. at 41.

B.     Procedural Background

This action was filed on October 18, 2023.

ECF No. 1.

The original complaint named Rushmore, Caliber, and Grayken as defendants.

Id. at 1.

Plaintiff filed an amended complaint, which added Fay Servicing as a defendant.

ECF No. 13.

Caliber waived service, ECF No. 23, and Plaintiff served Rushmore and Fay Servicing, ECF No. 24; ECF No. 25.

Rushmore filed a motion to dismiss on March 26, 2023. ECF No. 33.6

I gave Plaintiff an opportunity to file an amended complaint in which he addressed the alleged defects in that motion.

ECF No. 34.

He was directed to do so by April 16, 2024, but this deadline was later extended to May 21, 2024.

Id.; ECF No. 51; ECF No. 39.

In the intervening time, Caliber and Fay Servicing filed their own motions to dismiss.

ECF No. 39; ECF No. 53.

On April 7, 2024, Plaintiff filed a “Notice Regarding Service on Defendant Grayken,” in which he explained that Grayken would be served the following day at “Millenium Tower, Boston where he sometimes resides” and “maintains a suite,” and “at Pryf[or]d Court in Surrey, a residence owned by Mr. Grayken.”

ECF No. 37 at 1-2.

Plaintiff filed two proofs of service on April 9, 2024.

ECF No. 45; ECF No. 46.

The first noted that a server “left the summons at [Grayken’s] residence or usual place of abode with Chase (doorman), a person of suitable age

6 Defendants have filed the Notice to Pro Se Litigants required by the Court’s Local Rules.

See, e.g., ECF No. 33-3. and discretion who resides there, on 4/8/2024, and mailed a copy to the individual’s last known address.”

ECF No. 45 at 1.

And the second indicated that a server in the United Kingdom left legal documents, “as provided” by Plaintiff, with an individual named “PETKO” on Monday, April 8, 2024, at “Pyrford Court, Pyrford Common Road, Woking, GU22 8UB.”

ECF No. 46

I also denied Plaintiff’s motion for default entry against Grayken. 

ECF No. 70.

1. According to this submission, Petko described himself to the server “as a handyman, gardener and general assistant to the Grayken family who he [had] been employed by for many years.”

Id.

He told the server “that Mr. Grayken was not present at this time but should return on Saturday.”

Id.

The server asked Petko “if he was authorized to accept these documents on behalf of Mr. Grayken and would he bring them to his urgent attention on his return.”

Id.

After Petko “agreed to do so,” the server “handed him the documents in a sealed envelope address to Mr. John P. Grayken, Pyrford Court, Pyrford Common Road, Woking, GU22 8UB.”

Id. at 2.

Plaintiff moved for default entry as to Grayken on April 30, 2024.

ECF No. 58.

Grayken subsequently appeared in the case, and I granted him an extension of time in which to file a responsive pleading.

ECF No. 60; ECF No. 64.

Plaintiff filed a second amended complaint—which is the operative complaint for the purposes of this ruling, and which added Lone Star and U.S. Bancorp as defendants—on May 21, 2024.

ECF No. 67.

I denied the pending motions to dismiss as moot in light of this filing, but instructed Defendants that they could incorporate by reference their prior briefing.

ECF No. 68.

Defendants filed the present motions to dismiss over the course of June and July 2024.

ECF No. 72; ECF No. 78; ECF No. 83; ECF No. 88.

They are now ripe for adjudication.

II.                LEGAL STANDARD

A.     Rule 12(b)(5)

“A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or lack of delivery of the summons and complaint.”

Boahen v. Trifiletti, No. 3:18-CV-00171, 2019 WL 688412, at *3 (D. Conn. Feb. 19, 2019) (internal quotation marks omitted).

“Valid service is required before a federal court may exercise personal jurisdiction over a defendant.”

Darowski v. Wojewoda, No. 3:15-CV-00803, 2016 WL 4179840, at *2 (D. Conn., Aug. 7, 2016).

“In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4, which governs the content, issuance, and service of a summons.”

DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 64 (S.D.N.Y. 2010).

In addition, in considering a Rule 12(b)(5) motion to dismiss for insufficient service of process, “a court must look to matters outside the complaint, such as the steps taken by the plaintiff to effectuate service, to determine whether it has jurisdiction.”

Darowski, 2016 WL 4179840, at *2.

“[T]he plaintiff bears the burden of establishing that service was sufficient.”

Ahluwalia v. St. George’s Univ., LLC, 63 F. Supp. 3d 251, 260 (E.D.N.Y. 2014) (internal quotation marks omitted).

B.     Rule 12(b)(6)

In deciding a motion to dismiss under Rule 12(b)(6), I must determine whether the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.”

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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

I must accept as true all of the complaint’s factual allegations, id., and must “draw all reasonable inferences in favor of the non-moving party,”

Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008).7

“[T]he submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (internal quotation marks omitted).

But “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to survive a motion to dismiss.

Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014) (citation omitted).

III.             DISCUSSION

Grayken moves for dismissal for insufficient services of process under Rule 12(b)(5), while the Servicer Defendants move to dismiss the claims against them for failure to state a claim under Rule 12(b)(6). As explained below, I grant these motions and dismiss Plaintiff’s claims against Lone Star and U.S. Bancorp sua sponte for failure to perfect service.

A.     Insufficient Service of Process

7 As noted above, I may also “take judicial notice of public records such as pleadings, orders, judgments, and other documents from prior litigation, including state court cases.” Musciotto, 2019 WL 5086691, at *2 (internal quotation marks omitted).

Plaintiff contends that Grayken resides in both “Pryford, England, and Boston, Massachusetts,”

ECF No. 67 at 4, and that Defendant was served at his residences in each of these locations—specifically, at “Millenium Tower” in Boston and at “Pyrford Court” in Surrey—by process servers on April 8, 2024.

See generally ECF No. 37; ECF No. 45; ECF No. 46.

Rule 4(e) governs Plaintiff’s domestic service of process, while Rule 4(f) governs his purported service in the United Kingdom.

Plaintiff’s service at Millenium Tower in Boston does not satisfy Rule 4(e) because he has not shown that Millenium Tower was Grayken’s “dwelling or usual place of abode.”

Fed. R. Civ. P. 4(e)(2)(B).

Though Plaintiff’s opposition brief quotes an article published in January 2018, which reports that Grayken “paid $35 million for an unfinished penthouse condo at Millennium Tower,” the very excerpt included in Plaintiff’s brief notes that Grayken “couldn’t live there full-time if he wanted to,” because he “renounced his US citizenship,” and so “can’t live in the US for more than four months a year.”

ECF No. 103 at 2 (internal quotation marks omitted).8

Part-time residences may constitute “dwelling[s]” within the meaning of Rule 4(e)(2)(B) if they contain “sufficient indicia of permanence.”

Jaffe and Asher v. Van Brunt, 158 F.R.D. 278, 280 (S.D.N.Y. 1994).

But Plaintiff has not set forth any evidence indicating that Grayken still owned the condo at the time of service in April 2024—more than six years after

8 In any event, I may not consider this article, as it is not judicially noticeable and constitutes hearsay.

this article was published—or that he spent any amount of time there.

He has thus failed to meet his burden of proving that service was proper under Rule 4(e).

Plaintiff’s service at Pyrford Court likewise fails to satisfy Rule 4(f).

Rule 4(f) sets forth “three possible ways to effect service abroad,” including “compliance with the Hague Convention.”

Icon DE Holdings LLC v. Eastside Distributors, No. 14 CIV. 2832 PAE, 2015 WL 4557278, at *2 (S.D.N.Y. July 28, 2015).

The United Kingdom is a signatory to Article 10(b) of the Hague Convention, which permits “service of judicial documents directly through…competent persons of the State of destination,” including process servers.

20 U.S.T. 361, 363, T.I.A.S. No. 6638; see In re Aramid Ent. Fund Ltd., 664 B.R. 9, 43-44 (Bankr. S.D.N.Y. 2024).

It is not clear, however, that service on a defendant’s agent is permissible under the Hague Convention—or under the law of the United Kingdom.

See Kelly v. Vesnaver, No. 16CV883DRHSIL, 2017 WL 2389506, at *7 (E.D.N.Y. Apr. 11, 2017), report and recommendation adopted, No. 16-CV-883 (DRH)(SIL), 2017 WL 2389602 (E.D.N.Y. June 1, 2017).

Even if it was, Plaintiff has not established that Petko had actual or apparent authority to accept these documents on Grayken’s behalf.

Though Plaintiff’s proof of service indicates that the process server asked Petko “if he was authorized to accept [legal] documents on behalf of Mr. Grayken,” it does not indicate whether or how Petko replied to that question.

ECF No. 46 at 1-2.

And apparent authority generally only exists where the principal induced the third party to believe that another individual was authorized to act on his behalf.

See Authority, BLACK’S LAW DICTIONARY (12th ed. 2024)

(“[A]pparent authority[:]…Authority that a third party reasonably believes an agent has, based on the third party’s dealings with the principal, even though the principal did not confer or intend to confer the authority.”).

Plaintiff has not alleged that Grayken did anything that led him or the process server to believe that Petko was authorized to accept service on his behalf.

Plaintiff has thus failed to establish that he complied with Rule 4(f).9

His claims against Grayken are dismissed without prejudice for insufficient service of process.

See Fed. R. Civ. P. 4(m)

(“If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant….”).

B.     Failure to State a Claim

As noted already, Plaintiff’s claims are not numbered or clearly delineated, which makes it difficult to discern which claims, exactly, he brings and against which Defendants each is raised.

ECF No. 33-1 at 2.

In his prayer for relief, however, he identifies the following claims:

(1) violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),

(2) fraud,

(3) breach of the covenant of good faith and fair dealing,

(4) tortious interference with contract,

(5) violations of the Real Estate Settlement Procedures Act (“RESPA”),

and

(6) negligent

9 That Grayken eventually received actual notice of this lawsuit and appeared in the case does not cure Plaintiff’s failure to comply with Rule 4.

See William Gottlieb Mgt. Co, LLC v. Carlin, No. 20-CV-08907 (PAC), 2022 WL 17822578, at *3 (S.D.N.Y. Dec. 20, 2022).

infliction of emotional distress.

See ECF No. 67 at 65.10

He seeks “the fair value of the home, $241,300, multiplied-by-three under RICO provisions; damages in an amount the Court sees fit to compensate the foreclosure Defendants for the negligent infliction of emotional distress and tortious interference with contract[;]

and an injunction preventing the [Defendants]…from seeking to evict the Defendants, or from otherwise interfering with the foreclosure Defendants’ quiet enjoyment of their home.”

Id.

1.                  The Rooker-Feldman Doctrine11

The Servicer Defendants each move to dismiss this case under the Rooker-Feldman doctrine, which “bars federal district courts from hearing cases that in effect are appeals from state court judgments.”

Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021).

For the reasons set forth before, I conclude that Rooker-Feldman is not a bar to jurisdiction in this case.

The Supreme Court has emphasized that this doctrine occupies a “narrow ground”: it “is confined to…cases brought by state-court losers complaining of injuries caused by state-court

10 Plaintiff also repeatedly suggests that Defendants engaged in mail and wire fraud, see e.g. ECF No. 167 at 33, but states that he will “leave it up to this Court as to the culpable parties—the lawyers or their clients,” id. at 65.

Any claim for mail or wire fraud fails “because there is no private right of action under the mail and wire fraud statutes.”

In re Integrated Res., Inc. Real Est. Ltd. Partnerships Sec. Litig., 851 F. Supp. 556, 567 (S.D.N.Y. 1994).

11 Though Defendants raised this issue in their motion to dismiss for failure to state a claim, “[t]he Rooker- Feldman doctrine ‘concerns a district court’s subject-matter jurisdiction.’”

Chmura v. Norton, Hammersley, Lopez & Skokos Inverso PA, No. 3:17-CV-2164 (MPS), 2018 WL 2138631, at *2 (D. Conn. May 9, 2018) (quoting Lance v. Coffman, 549 U.S. 437, 439 n.* (2007)).

Courts generally must “pass on…jurisdictional issues before considering whether a claim was stated by the complaint.”

Bella v. Bureaus Inv. Grp. Portfolio No. 15 LLC, 2019 WL 2295840, at *1 (E.D.N.Y. May 30, 2019).

I thus begin by addressing Defendants’ arguments regarding Rooker-Feldman.

judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.”

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005).

It “does not deprive a district court of subject-matter jurisdiction ‘simply because a party attempts to litigate in federal court a matter previously litigated in state court.’”

Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 86 (2d Cir. 2005) (quoting Exxon Mobil Corp., 544 U.S. at 293).

The Second Circuit has “articulated four requirements that must be met for Rooker- Feldman to apply:

(1) the federal-court plaintiff must have lost in state court;

(2) the plaintiff must complain of injuries caused by a state-court judgment;

(3) the plaintiff must invite district court review and rejection of that judgment;

and

(4) the state-court judgment must have been rendered before the district court proceedings commenced.”

Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021)

(internal quotations marks and alterations omitted).

“Although all four requirements must be met in order for Rooker-Feldman to act as a jurisdictional bar[,] the second requirement—that the plaintiff complains of an injury caused by a state-court judgment—is the core requirement from which the other Rooker-Feldman requirements derive.”

Id. at 101-102 (internal quotation marks and alterations omitted).

As I will explain below, this second prong is where Defendants’ arguments fall short.

“In analyzing the second and third prongs—otherwise known as the ‘substantive’ elements of the test—the Second Circuit has identified several…jurisprudential principles to aid a court’s analysis.”

Homeowners Fin. Co. v. Lamont, No. 3:20-CV-01282 (JCH), 2021 WL 4263376, at *5 (D. Conn. Sept. 20, 2021) (internal quotation marks and alterations omitted).

“First, it has held that Rooker-Feldman squarely forecloses claims that address an injury caused by the state court judgment and require the district court to review that judgment.”

Id. (internal quotation marks and alterations omitted).

“Further, the Second Circuit has been careful to adhere to Exxon’s reminder that Rooker-Feldman does not necessarily bar a federal plaintiff from presenting some independent claim, even if such claim denies a legal conclusion that a state court has reached in a case to which he was a party.”

Id. (internal quotation marks and alterations omitted).

In other words, an alleged injury that was “merely ratified” by a state-court judgment does not trigger Rooker-Feldman.

Dorce, 2 F.4th at 104 (internal quotation marks omitted).

For example, in Sung Cho v. City of New York, the Second Circuit held that Rooker- Feldman did not apply because the state court judgment had ratified, but not caused, the plaintiffs’ alleged injuries.

910 F.3d 639, 641 (2d Cir. 2018).

The plaintiffs in that case were subject to eviction under New York City’s Nuisance Abatement Law, and had agreed to settle the eviction proceedings, rather than litigate the nuisance charges.

Id.

“[A]fter the plaintiffs signed their settlement agreements, each of the agreements was ‘so-ordered’ by justices of the Bronx and New York County Supreme Courts, and the nuisance actions were dismissed.”

Id. at 643.

Plaintiffs later brought a federal lawsuit alleging that the eviction proceedings had been used to coerce them into waiving their constitutional rights and that the settlement agreements thus violated the Fourteenth Amendment.

Id.

The Second Circuit noted that Plaintiffs’ claims were “about the [settlement] agreements themselves and the conduct that led to them—not the judgments so-ordered by the state court.”

Id. at 646.

The Plaintiffs did “not argue that the state courts committed any error,” nor were they attempting to remedy “an injury that flow[ed] from [the] state-court judgment.”

Id. at 647, 649.

Rather, they were “attempting to remedy an alleged injury caused when, prior to any judicial action, they were coerced to settle.”

Id. at 649.

In Dorce, the Second Circuit concluded that Rooker-Feldman barred one of the plaintiffs’ five claims.

2 F.4th at 101.

The City of New York had initiated foreclosure proceedings and transferred ownership of the plaintiffs’ properties under the City’s Third Party Transfer (“TPT”) program.

Id. at 87, 90-92.

The plaintiffs subsequently filed a federal lawsuit, in which they raised two takings claims, an equal protection claim, and two due process claims.

Id. at 105-07.

The Second Circuit found that the takings claim alleging that “Plaintiffs’ properties were transferred in violation of the administrative regulations governing the TPT Program” was barred by Rooker-Feldman “because the injury Plaintiffs complain[ed] of [wa]s the loss of their property, which was caused by the state court judgments that divested them of that property.”

Id. at 94, 105.

“By effecting the divestiture of Plaintiffs’ interest in their property, the state court judgments thus directly inflicted the injury complained of.”

Id. at 105.

“That satisfies the third Rooker-Feldman requirement, because in order to prevail, Plaintiffs would need to persuade the district court that the state court had erred.”

Id.

But Rooker-Feldman did not apply to the plaintiffs’ “second takings claim—that their property was taken for a public purpose without just compensation—…[because t]hat injury was caused not by the judgment of forfeiture, but by the City’s actions following upon the forfeiture.”

Id. at 105.

Rooker-Feldman likewise did not bar the plaintiffs’ claim that the City “disproportionately target[ed] properties in communities of color for foreclosure,…because it is the City that decides which properties to target for inclusion in the TPT Program, prior to any state court proceeding.”

Id. at 106.

Nor did it bar plaintiffs’ due process claims “based on lack of notice of the in rem foreclosure proceeding.”

Id.

The Second Circuit explained that, although resolution of these claims “would require the district court to, in some sense, review the state court judgment, because that judgment concluded that notice was provided…this is not the sort of review Rooker-Feldman forbids.”

Id. at 106.

The doctrine “prohibits lower federal courts only from taking appeals from state courts,” but “does not prevent them, as part of adjudicating an independent claim, from denying a legal conclusion that a state court has reached.”

Id. at 106-07 (internal quotation marks and citations omitted).

This court applied these principles in Homeowners Finance Company, 2021 WL 4263376, at *4.

Similar to Dorce, that case arose from “the tax sale of real property on which [the plaintiffs] held a mortgage.”

Id. at *1.

The plaintiffs filed a federal lawsuit, in which they asked the court to “adjudicate the legal effect of the state court judgment.”

Id. at *8 (internal quotation marks omitted).

The court found that Rooker-Feldman applied to all of the plaintiffs’ claims.

Though some were “styled as arising from the sale of the property itself, rather than the state-court judgment upholding the sale,” the court explained that plaintiffs “d[id] not complain of any injuries beyond the sale of its property and the state-court judgment upholding the sale”— like the racial discrimination alleged in Dorce—“nor d[id they] allege any misconduct by [the defendant] in procuring the state court judgment.”

Id. at *8-9.

In this case, conversely, Plaintiff’s claims are all based on alleged misconduct by the defendants in obtaining the foreclosure judgment.

For example, with respect to his RICO claim, Plaintiff alleges that Defendants are part of an “enterprise whereby Lone Star…engag[es] servicers to foreclose using Plaintiffs without standing as Trustees for sham Trusts,” including the LSF9 Trust in this case, and that the state court judgment would not have been entered “[b]ut for” this misconduct.

ECF No. 67 at 41, 43.

Plaintiff’s claims against the Servicer Defendants for fraud, breach of the covenant of good faith and fair dealing, violations of RESPA, negligent infliction of emotional distress, and tortious interference with contract are similarly based on their alleged misconduct before or during the state court proceedings.

Id. at 45

(alleging that the mortgage assignments in July 2016, October 2021, and January 2022 “constitute financial institution fraud because the Court and the Defendants in the original foreclosure action relied on the validity of the assignments”);

id. at 46

(alleging that Rushmore breached the covenant of good faith and fair dealing “when it refused to acknowledge Defendant O’Brien as a legitimate successor-in-interest to the subject property,” and that “all three servicers breached the covenant of good faith and fair dealing by failing to evaluate the foreclosure Defendant’s loss mitigation application”);

id. at 48

(alleging that Rushmore misrepresented the availability of a loan modification to Plaintiff);

id. at 48, 54

(alleging that Rushmore, Fay Servicing, and Caliber violated RESPA by treating Plaintiff and his foreclosure co-defendants “as strangers to the mortgage,” and failing to timely review his “complete loss mitigation application”);

id. at 62

(alleging that the Servicer Defendants’ misconduct caused Plaintiff and his other foreclosure co- defendants “emotional distress because their home could be stolen away by legal sleight-of- hand”);

id. at 63-64

(“By adding new terms through the securitization of the mortgage, Defendant Long Star Funds tortiously interfered with the mortgage contract the late Caroline O’Brien executed with Fleet Bank which later merged with Bank of America.”).

These are independent claims that arise out of Defendants’ pre-judgment conduct—not the foreclosure judgment itself.

Connecticut state courts may have made findings that are contrary to Plaintiff’s allegations, and the complaint at times suggests that the state court erred.

See, e.g., ECF No. 67 at 29

(“Based on the apparent misreading of Judge Moore’s order, an Order of Ejectment issued….”).

But Plaintiffs’ claims are not based on these alleged errors, and I could rule for Plaintiff without making such a finding.

Rooker-Feldman thus does not bar me from adjudicating Plaintiff’s claims.

2.                  Res Judicata

Caliber and Fay Servicing further argue that the claims against them are barred by the doctrine of res judicata, or claim preclusion.12

I agree.

Notwithstanding Defendants’ alleged

12 “Although res judicata is an affirmative defense under Rule 8(c), the defense may be upheld on a 12(b)(6) motion to dismiss when all relevant facts are pled or shown by records of which the court may take notice”—as they are in this case.

Cirigliano v. Vill. of Afton, N.Y., No. 3:09-CV-00298 LEK, 2012 WL 2752867, at *7 n.10 (N.D.N.Y. July 9, 2012).

fraud, Plaintiff had an opportunity to raise and press his legal claims regarding the mortgage foreclosure during his proceedings in state court—and did in fact do so on several occasions.

As discussed below, this is what matters for the purposes of this legal defense.

Under the doctrine of res judicata, “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).

“In considering the preclusive effect of a state court judgment on a subsequent federal action[,] a court consults the preclusion laws of the state in which the judgment was issued.”

Homeowners Finance Co., 2021 WL 4263376, at *10 (internal quotation marks and alterations omitted).

Caliber and Fay Servicing must satisfy four elements to sustain their res judicata defense under Connecticut law:

“(1) the judgment must have been rendered on the merits by a court of competent jurisdiction;

(2) the parties to the prior and subsequent actions must be the same or in privity;

(3) there must have been an adequate opportunity to litigate the matter fully;

and

(4) the same underlying claim must be at issue.”

Giolametti v. Michael Horton Associates, Inc., 332 Conn. 67, 75 (2019) (internal quotation marks omitted).

Connecticut has adopted a “transactional test” for determining whether the fourth element is satisfied, under which courts must “inquire whether the prior and present actions stem from the same transaction.”

Weiss v. Weiss, 297 Conn. 446, 461 (2010).

Res judicata thus bars legal claims “based on the same transaction that ‘were, or could have been, raised in the prior action.’”

Homeowners Finance Co., 2021 WL 4263376, at *10 (quoting Soules v. Connecticut, Dep’t of Emergency Serv. and Pub. Prot., 882 F.3d 52, 55 (2d Cir. 2018)) (emphasis added).

Here, Plaintiff appears to concede that the foreclosure action was adjudicated on the merits.

See ECF No. 67 at 19, 29

(noting that there was a trial, that the case then “worked its way through the Connecticut Appellate and Supreme Courts, and later to the United States Supreme Court,” and that “an Order of Ejectment” was later issued and appealed);

see also ECF No. 91 at 13

(contending that Plaintiff did not have a full and fair opportunity to litigate his claims in state court but not addressing the other three res judicata factors).

State court filings likewise indicate that the Connecticut Superior Court entered judgment on the merits.

See, e.g., ECF No. 74-10 at 9

(indicating that an “Order Re: Proposed Ejectment” was entered on February 9, 2024).

Though an appeal of that order was pending when these motions were filed, “[i]n Connecticut, the judgment of a trial court is final, despite a pending appeal, when the issue is the applicability of the rules of res judicata.”

Martin v. Town of Westport, 558 F. Supp. 2d 228, 237 (D. Conn. 2008) (internal quotation marks and alterations omitted).

Plaintiff likewise does not dispute that both he and U.S. Bank were parties to the state court action and that, as servicers for U.S. Bank, Caliber and Fay Servicing are “in privity” with a party to the prior action.

See also Gibson v. Bank of Am., N.A., No. 16-cv-2689, 2017 WL 11685868, at *5 (E.D.N.Y. July 14, 2017)

(“District courts generally have found there to be privity between a mortgage servicer and the owner of the mortgage.” (internal quotation marks and alterations omitted)).

So the first and second elements of res judicata are satisfied.

Plaintiff contends, however, that he did not have a “full and fair opportunity to litigate” these issues in the foreclosure action because “there were repeated fraudulent filings—allowed by the Court.”

ECF No. 91 at 4.

But that is irrelevant to whether Plaintiff received an opportunity to raise and press legal claims about the underlying “transaction” or set of facts.

And by his own admission, Plaintiff raised at least some of these claims and issues in state court.

See id. at 4

(“Defendant in filings had pointed-out that the foreclosure Plaintiff…claimed a dead woman had been served a notice; maintained that U.S. Bank with no financial interest in the mortgage was proper Plaintiff, and offered into evidence a fraudulently-notarized lost note Affidavit.”).

That such allegations “fell on deaf ears” does not mean that res judicata does not apply.

Id. at 4-5; see Washington v. Blackmore, 468 F. App’x 86, 87 (2d Cir. 2012) (summary order)

(“Washington’s argument that res judicata does not apply…because the claim was ‘overlooked’ by the state courts is without merit, as a claim is barred by res judicata so long as it could have been litigated in a prior action.”).

Nor does the fact that Plaintiff obtained new evidence in support of his claims from the Paatalo Report or other sources.

Powell v. Ocwen Loan Servicing, LLC, No. 3:18-CV-01879 (JAM), 2019 WL 3412174, at *5 (D. Conn. July 29, 2019), aff’d, 840 F. App’x 610 (2d Cir. 2020)

(“Connecticut law is clear that res judicata does not turn on whether a party happens to have acquired additional evidence or developed new legal theories to support claims that could have been brought in the first instance in the prior action.”).

Orders and filings from the state court proceedings further indicate that Plaintiff’s present claims were in fact litigated in state court—and are based on the same transaction as that action.

See, e.g., ECF No. 74-16 at 2

(a Connecticut Superior Court order dated June 6, 2022, denying Plaintiff’s “motion to open and vacate and to dismiss” because “[t]he assignment provided standing and the movant has exhausted all of his appellate rights as to prior issues”);

ECF No. 74-17 at 6-7

(a transcript of proceedings before the Connecticut Superior Court on August 1, 2022, in which the court addressed

(1) “new issues as to standing” raised by Plaintiff

and

(2) allegations that Plaintiff’s loan modification request was “not handled properly,” thus U.S. Bank “c[a]me[] into th[e] case with unclean hands”).

I conclude that all four res judicata elements are satisfied with respect to Plaintiff’s claims against Caliber and Fay Servicing.

This reasoning applies with equal force to Rushmore:

Plaintiff brings the same claims against Rushmore, and, like Caliber and Fay Servicing, Rushmore serviced Plaintiff’s mortgage and thus was in privity with U.S. Bank.

See ECF No. 67 at 22

(“About three months after servicing was transferred to Fay, it was transferred on 15 June 2021 to Rushmore Loan Management Services, LLC [Rushmore].”).

Though Rushmore did not invoke res judicata in its motion to dismiss, Plaintiff addressed the issue in his opposition brief, ECF No. 90 at 7, and I can raise res judicata sua sponte.

See Griffin v. Carnes, 72 F.4th 16, 21 (2d Cir. 2023).

I will thus dismiss all claims against the Servicer Defendants with prejudice under the doctrine of res judicata.

C.     Lone Star and U.S. Bancorp

Plaintiff failed to timely and properly serve Lone Star and U.S. Bancorp.

Service was due on August 19, 2024—90 days after May 21, 2024, when Plaintiff’s second amended complaint that added these defendants was filed.

See ECF No. 67; Fed. R. Civ. P. 4(m).

Plaintiff moved for additional time to perfect service two days later.

ECF No. 98.

I denied this motion because it was not timely filed and Plaintiff had been warned on several occasions that untimely motions for extension of time would not be granted.

ECF No. 101.

Plaintiff moved again for additional time to serve these defendants on December 1, 2024.

ECF No. 108.

He attributed his prior delays to “spen[ding] most of the summer sick in bed, and los[ing] track of time,” and also moved for leave to amend his complaint.

ECF No. 105.

I denied both of these motions on December 3, 2024, explaining that “[alt]hough an illness can constitute good cause for a delay in service, Plaintiff has not provided any details regarding the nature of his illness or explained why it prevented him from serving these defendants.”

ECF No. 109.

Nor had he “provided a medical letter signed by a licensed physician or explained the more than three-month gap…between the present motion and his previous motion for extension of time.”

Id.

As to the motion for leave to amend, I noted that the Scheduling Order “made clear that any motions to join additional parties or to amend the pleadings filed after May 7, 2024 must be supported by a showing of good cause,” and that Plaintiff had not made such a showing.

Id. (internal quotation marks omitted).

Though Lone Star and U.S. Bancorp have not moved for dismissal under Rule 12(b)(5), I can dismiss the claims against them for insufficient service of process sua sponte if Plaintiff receives notice and does not “show[] good cause for the failure.”

Fed. R. Civ. P. 4(m).

Here, I have already warned Plaintiff that failure to timely and properly serve defendants could result in dismissal of his claims.

See ECF No. 20

(“If Plaintiff fails to serve Defendant Grayken by April 8, 2024, he shall, by that date, show cause why…the claims against Defendant Grayken should not be dismissed. Failure to show such cause in the event that Defendant Grayken has not been properly served will result in dismissal of the complaint as to Defendant Grayken.”).

And, as explained already, Plaintiff has not shown good cause for his delays.

So I will not afford Plaintiff further notice or permit further delay in entering judgment in this case.

Nor will I give Plaintiff further opportunity to serve Lone Star and U.S. Bancorp.13

This case is thus DISMISSED without prejudice with respect to Lone Star and U.S. Bancorp.

IV.             CONCLUSION

In sum, Plaintiff’s claims against Grayken, Lone Star, and U.S. Bancorp are dismissed without prejudice.

His claims against the Servicer Defendants are dismissed with prejudice.

The Clerk is instructed to close this case.

IT IS SO ORDERED.

/s/                        Michael P. Shea, U.S.D.J.

13 I refer to pages 9 through 14 of Caliber’s memorandum of law, ECF No. 73, which show this case’s lengthy procedural history and Plaintiff’s efforts to delay the transfer of title to property required by previous rulings of the state courts.

I also note that Plaintiff recently filed in this Court another lawsuit against Lone Star and U.S. Bancorp (as well as two other defendants) arising from the same state court foreclosure proceeding.

See Dkt. No. 3:25-cv-00458.

Dated: Hartford, Connecticut

March 31, 2025