Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 1 of 38
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
`
`
`
`
`
`
`
`
`
`
`
`CAROL ROTHERMEL,
`
`Plaintiff,
`
`
`
`
`v.
`
`U.S. BANK NATIONAL ASSOCIATION,
`AS TRUSTEE ON BEHALF OF THE
`HOLDERS OF THE ADJUSTABLE-
`RATE MORTGAGE TRUST 2007-1,
`ADJUSTABLE-RATE MORTGAGE-
`BACKED PASS-THROUGH
`CERTIFICATES SERIES 2007-1, et al.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`3:23-cv-1329 (SVN)
`
`
`
`
`
`
`
`
`
`
`
`March 28, 2025
`
`
`RULING ON DEFENDANTS’ MOTIONS TO DISMISS AND CROSS MOTIONS FOR
`SUMMARY JUDGMENT
`
`Sarala V. Nagala, United States District Judge.
`
`
`
`In this action, pro se Plaintiff Carol Rothermel appears to allege violations of several
`
`federal, state, and common law rights stemming from Defendants’ alleged actions in connection
`
`with the foreclosure of Plaintiff’s home. In short, the amended complaint appears to allege that,
`
`through a series of actions, Defendants U.S. Bank National Association as Trustee on Behalf of
`
`the Holders of the Adjustable-Rate Mortgage Trust 2007-1, Adjustable-Rate Mortgage-Backed
`
`Pass-Through Certificates Series 2007-1 (“U.S. Bank”); Select Portfolio Servicing (“SPS”)1;
`
`Geraldine A. Cheverko (“Attorney Cheverko”); and John L. Mezzo, worked collectively to
`
`unlawfully and fraudulently foreclose on Plaintiff’s home. U.S. Bank and SPS have moved to
`
`dismiss the amended complaint for lack of personal jurisdiction, insufficient service, lack of
`
`subject matter jurisdiction, and failure to state a claim. Attorney Cheverko has moved to dismiss
`
`
`1 Plaintiff refers to SPS as “Select Portfolio Servicing” in the caption of the amended complaint, but refers to it as
`“Select Portfolio Servicing Inc.” in the body of the complaint. See Am. Compl., ECF No. 26 at 1. SPS refers to itself
`as “Select Portfolio Servicing, Inc.” in its briefing. See U.S. Bank & SPS Mot. to Dismiss, ECF No. 42 at 1.
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 2 of 38
`
`for lack of subject matter jurisdiction and failure to state a claim. Plaintiff has also moved for
`
`summary judgment, and Mezzo has cross moved for summary judgment.
`
`For the reasons detailed below, the Court GRANTS in part Attorney Cheverko’s motion to
`
`dismiss, GRANTS in part and DENIES in part U.S. Bank and SPS’s motion to dismiss, GRANTS
`
`in part Mezzo’s motion for summary judgment, and DENIES in part Plaintiff’s motion for
`
`summary judgment. Specifically, the Court grants the motions to dismiss and Mezzo’s motion for
`
`summary judgment and denies Plaintiff’s motion for summary judgment as to Plaintiff’s federal
`
`law claims and quiet title claim, which are dismissed without leave to amend. The Court also
`
`denies U.S. Bank’s motion to dismiss as to lack of personal jurisdiction and insufficient service of
`
`process. As the parties have not briefed the issue of supplemental jurisdiction, the Court declines
`
`to decide the remaining state law claims pending additional briefing from the parties.
`
`I.
`
`FACTUAL BACKGROUND
`
`
`
`Because the amended complaint alleges very few facts in nonchronological order, the Court
`
`takes judicial notice of state court documents relating to the underlying foreclosure proceeding in
`
`order to describe the factual history and procedural posture of this case. See Giraldo v. Kessler,
`
`694 F.3d 161, 164 (2d Cir. 2012) (courts may take “judicial notice of relevant matters of public
`
`record”); HSBC Bank USA, Nat’l Ass’n as Tr. for Opteum Mortg. Acceptance Corp. Asset-Backed
`
`Pass-Through Certificates Series 2005-2 v. Vitti, No. 3:21-cv-1221 (SRU), 2021 WL 4810578, at
`
`*1 n.1 (D. Conn. Oct. 15, 2021) (taking judicial notice of underlying foreclosure action). To the
`
`extent Plaintiff has alleged facts in her amended complaint, they are accepted as true for purposes
`
`of deciding Defendants’ motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`
`The foreclosure proceeding underlying this action (“Foreclosure Action”) was filed by U.S.
`
`Bank, the assignee of the mortgage loan at issue, on March 20, 2013, in Connecticut Superior
`
`2
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 3 of 38
`
`Court. See U.S. Bank Nat’l Ass’n, as Tr., ex rel. Holders of Adjustable Rate Mortg. Trs. v.
`
`Rothermel, No. FST-CV13-6017616-S (Conn. Super. Ct.); Foreclosure Action Docket, ECF No.
`
`42-3 at 3. The Foreclosure Action was brought following Rothermel’s alleged default on a
`
`$1,000,000 mortgage loan encumbering 104 Bald Hill Road in New Canaan, Connecticut.
`
`Foreclosure Action Compl., ECF No. 42-2 ¶¶ 1, 2, 4–6. SPS is the mortgage servicer and attorney-
`
`in-fact for U.S. Bank. Benight Aff., ECF No. 42-4 ¶ 1. Attorney Cheverko entered an appearance
`
`on behalf of U.S. Bank in the Foreclosure Action on July 24, 2019. Not. of Appearance, ECF No.
`
`39-4.
`
`U.S. Bank’s first motion for judgment of strict foreclosure was granted on January 13,
`
`2014. June 17, 2019, Mem. Decision, ECF No. 42-8 at 174. Following years of litigation on
`
`motions to open the judgment and extend the law day, on February 9, 2019, the Connecticut
`
`Superior Court granted U.S. Bank’s motion to open the judgment and extend the law day and
`
`scheduled the law day for March 12, 2019. Id. On March 13, 2019, the day after the law day
`
`expired, Rothermel, represented by counsel, filed another motion to open the judgment and extend
`
`the law day. Id. at 175. The Superior Court denied the motion. Id. at 183. Further details
`
`regarding the arguments made in the motion and the Superior Court’s holding are discussed below.
`
`Rothermel was evicted from the property by a court order on November 29, 2022. See March 6,
`
`2023, Order, ECF No. 42-11 at 2.
`
`Plaintiff brings this action for damages and to quiet title of the property located at 104 Bald
`
`Hill Road. ECF No. 26 at 8. She alleges generally that Defendants have “unclean hands” and
`
`engage in a “practice and a pattern of stealing homes.” Id. at 7. She claims that she paid a total of
`
`$64,650.28 to SPS, the servicer of the mortgage on her property, in the period between February
`
`of 2014 and August of 2018, “under false pretense.” Id. at 2; Pl.’s Exs., ECF No. 28 at 3. Plaintiff
`
`3
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 4 of 38
`
`alleges she submitted a complete loss mitigation application2 in 2017 with SPS, for which SPS
`
`acknowledged receipt in a letter dated January 19, 2017. ECF No. 26 at 2; ECF No. 28 at 4. In
`
`addition, Plaintiff filed a request for a short payoff to refinance her mortgage in September of
`
`2018, to which SPS responded that Plaintiff would be required to cover the closing costs of the
`
`refinance. ECF No. 26 at 3. During this time, SPS continued to acknowledge that Plaintiff’s loss
`
`mitigation application was under review and that it would not move forward with the foreclosure
`
`of her home until a final denial of all loss mitigation options. Id. On March 6, 2019, which was
`
`six days before the law day scheduled for March 12, 2019, SPS sent a letter to Plaintiff indicating
`
`that “SPS considers foreclosure only as a last resort. We want to work with you to find a solution
`
`to avoid foreclosure.” Id. at 4.
`
`Despite these assurances, Plaintiff alleges SPS nonetheless proceeded with obtaining a
`
`foreclosure judgment on Plaintiff’s home before she received final denial of her loss mitigation
`
`application. See id. at 4–5. Plaintiff asserts that SPS, by proceeding in this manner, has violated
`
`federal regulations implementing Real Estate Settlement Procedures Act (“RESPA”) that prohibit
`
`a servicer from moving for foreclosure judgment or order of sale while the loss mitigation process
`
`is ongoing—also known as dual tracking. Id. at 4 (citing 12 C.F.R. § 1024.41(g)).
`
`Moreover, Plaintiff alleges SPS failed to communicate a final denial of Plaintiff’s request
`
`for a short payoff. Id. at 5. Plaintiff claims she submitted a signed agreement for a short payoff
`
`of $575,000, which SPS rejected by telling her “the deal is off the table”; but Plaintiff alleges SPS
`
`failed to formally reject the offer in writing. Id. Thus, according to Plaintiff, SPS has violated a
`
`RESPA statutory provision that requires loan servicers to respond to borrower inquiries and
`
`
`2 A “loss mitigation application” is a written or oral request for an alternative to foreclosure. See 12 C.F.R. § 1024.31.
`
`4
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 5 of 38
`
`another RESPA regulation that requires loan servicers to respond to a borrower’s notice of error
`
`in writing. Id. (first citing 12 U.S.C. § 2605(e); and then citing 12 C.F.R. § 1024.35(e)).
`
`Plaintiff has also put forth certain additional facts following her submission of the amended
`
`complaint. Plaintiff avers that Defendant Mezzo actually bought her house in 2015 while it was
`
`in foreclosure, but was unable to take possession of it because the home was still legally owned
`
`by Plaintiff. See Pl.’s Aff., ECF No. 98 at 1. Plaintiff also attaches an affidavit by William Olsen,
`
`who appears to have lived at Plaintiff’s property during the relevant period. See Olsen Aff., ECF
`
`No. 30 at 1. He claims to have seen Mezzo, Mezzo’s wife, and Mezzo’s parents on Plaintiff’s
`
`property dozens of times. Id. at 2, 3 (alleging that he and Plaintiff “could not understand why [they
`
`were] being harassed by John Mezzo” and that the Mezzos “were acting like they owned the
`
`house”). Olsen also claims that, in 2022, a “researcher” working on behalf of Olsen and Plaintiff
`
`learned from Mezzo’s then-coworker that Mezzo “has been trying to get [Plaintiff’s] house for
`
`many many [sic] years” because “[i]t is close to his parent’s house and the school system.” Id. at
`
`3.
`
`On November 29, 2022, Defendants evicted Plaintiff using an “emergency eviction”
`
`process and scheduled a foreclosure sale “due to the house already being sold.” ECF No. 26 at 5;
`
`ECF No. 28 at 5; ECF No. 98 at 2. Plaintiff claims that she was evicted so Mezzo could take
`
`possession of her property and that Defendants conspired to disguise Mezzo’s involvement in the
`
`purchase. See ECF No. 98 at 1–2.
`
`Plaintiff alleges that this was an “orchestrated scheme” to “steal” her house and that the
`
`foreclosure judgment was obtained “by fraud, misrepresentation and other misconduct,” which
`
`constitute violations of the Fair Debt Collection Practices Act (“FDCPA”), through the use of false
`
`representation and unfair means to collect a debt. ECF No. 26 at 5–6 (citing 15 U.S.C. §§ 1692e,
`
`5
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 6 of 38
`
`1692f). In addition, Plaintiff alleges “predicate acts of mail fraud,” for a civil claim under the
`
`Racketeer Influenced Corrupt Organizations Act (“RICO”) because she never received an
`
`Emergency Mortgage Assistance Program (“EMAP”) notice via certified mail and her signature
`
`on the green certified mail receipt was forged. Id. at 6–7. According to Plaintiff, Defendants’
`
`conduct shows that they had violated the civil RICO Act, committed “extrinsic fraud,” aided and
`
`abetted fraud, had a civil conspiracy to defraud, and violated the Connecticut Unfair Trade
`
`Practices Act (“CUTPA”). Id. Plaintiff further claims that unnamed Defendants use shell
`
`corporations “to disguise ownership by bad actors in the acquisition of real estate that could
`
`involve money laundering,” in contravention of the Corporate Transparency Act of 2024 (“CTA”),
`
`and it appears that a “Bald Hill LLC” was formed to acquire her property. Id. at 8. Plaintiff further
`
`alleges that she was not given a final accounting of her loan, in violation of the Truth in Lending
`
`Act (“TILA”), although she does not identify which Defendant would have been responsible for
`
`providing the accounting. Id. Finally, Plaintiff refers to Section 1983 and claims that Defendants
`
`violated her civil rights, although she fails to identify which rights.
`
`The Court and Defendants liberally construe the references to Defendants’ alleged
`
`violations summarized above to be claims that Plaintiff intends to bring. Because the amended
`
`complaint is often unclear as to which Defendant had committed the violative conduct, the Court
`
`assumes that Plaintiff is bringing all her claims against all Defendants. The federal claims are as
`
`follows: (1) RESPA violations for dual tracking and failure to respond to notice of error in writing;
`
`(2) FDCPA violations for using false representation and unfair means to collect a debt; (3) a
`
`Section 1983 claim; (4) a civil RICO violation; (5) a TILA violation; and (6) a violation of the
`
`CTA. The state law claims are: (1) quiet title; (2) extrinsic fraud; (3) aiding and abetting fraud;
`
`6
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 7 of 38
`
`(4) civil conspiracy to defraud; and (5) CUTPA violations. As discussed below, Plaintiff has also
`
`raised additional federal and state law claims in her opposition to the motions to dismiss.
`
`II.
`
`PROCEDURAL BACKGROUND
`
`Plaintiff filed the instant action on October 12, 2023, against U.S. Bank, Attorney
`
`Cheverko, Mezzo, and seven other defendants. See Compl., ECF No. 1. The Court dismissed the
`
`case for lack of subject matter jurisdiction under the Rooker-Feldman doctrine, as the original
`
`complaint sought to void the allegedly wrong foreclosure judgment issued by the Connecticut
`
`Superior Court regarding Plaintiff’s home. See Order, ECF No. 15. The Court later granted a
`
`motion to reopen the case to the extent Plaintiff was seeking money damages for the allegedly
`
`fraudulently-procured foreclosure judgment, but denied the motion to the extent Plaintiff requested
`
`that the Court vacate the state judgment. See Order, ECF No. 17. Upon reopening the case, the
`
`Court also ordered Plaintiff to show cause why she believed that the Court had subject matter
`
`jurisdiction over the case. Order, ECF No. 18.
`
`After reviewing Plaintiff’s response to the Court’s order to show cause, on January 30,
`
`2024, the Court sua sponte dismissed the complaint without prejudice for lack of subject matter
`
`jurisdiction. See Order, ECF No. 24. The Court found that Plaintiff’s complaint could not support
`
`diversity jurisdiction, as Plaintiff was a Connecticut citizen and at least one of the Defendants was
`
`also a Connecticut citizen. Id. The Court additionally concluded that Plaintiff had not stated a
`
`plausible claim arising under federal law. Id. The Court granted Plaintiff leave to amend. Id.
`
`On March 5, 2024, Plaintiff timely filed her amended complaint against U.S. Bank, SPS,
`
`Attorney Cheverko, and Mezzo. ECF No. 26. Following the amended complaint, Plaintiff also
`
`filed two documents that purport to include evidence, to which the Court informed Plaintiff that
`
`7
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 8 of 38
`
`evidence was not required at the pleading stage and thus will not be considered. See Orders, ECF
`
`Nos. 32, 36.
`
`Attorney Cheverko, U.S. Bank, and SPS filed their motions to dismiss Plaintiff’s claims
`
`against them, while Mezzo filed an answer to the amended complaint. Cheverko Mot. to Dismiss,
`
`ECF No. 39; ECF No. 42; Mezzo Answer, ECF No. 49. Plaintiff’s responses to the motions to
`
`dismiss raised facts and claims that were not alleged in the amended complaint. Additionally,
`
`although the Court had not yet ruled on the motions to dismiss, Plaintiff filed a motion for summary
`
`judgment, which once again raised many of the same facts and claims that were alleged in her
`
`responses to the motions to dismiss but not in her amended complaint. See Pl.’s Mot. for Summ.
`
`J., ECF No. 67. In response, Mezzo cross-moved for summary judgment. Mezzo Mot. for Summ.
`
`J., ECF No. 76. In this decision, the Court resolves all of the federal law claims and quiet title
`
`claim in all of these motions.
`
`* * *
`
`DEFENDANTS’ MOTIONS TO DISMISS
`
`
`
`For the reasons described below, the Court grants in part SPS and U.S. Bank’s motion to
`
`dismiss and grants in part Attorney Cheverko’s motion to dismiss.
`
`I.
`
`SUBJECT MATTER JURISDICTION
`
`Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a
`
`case for lack of subject matter jurisdiction. A case is properly dismissed for lack of subject matter
`
`jurisdiction if the Court lacks the “statutory or constitutional power to adjudicate it.” Makarova
`
`v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction
`
`has the burden of proving by a preponderance of the evidence that it exists. Id.
`
`8
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 9 of 38
`
`The Court first holds that it lacks subject matter jurisdiction over Plaintiff’s renewed
`
`request to quiet title of the 104 Bald Hill Road property.
`
`“Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over cases
`
`that essentially amount to appeals of state court judgments.” Vossbrinck v. Accredited Home
`
`Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014). That is because, “within the federal judicial
`
`system, only the Supreme Court may review state-court decisions.” Hoblock v. Albany Cty. Bd.
`
`of Elections, 422 F.3d 77, 85 (2d Cir. 2005); see also Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923);
`
`D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983). Under the Rooker-Feldman doctrine, a
`
`federal district court lacks subject matter jurisdiction where four requirements are met: “First, the
`
`federal-court plaintiff must have lost in state court. Second, the plaintiff must complain of injuries
`
`caused by a state-court judgment. Third, the plaintiff must invite district court review and rejection
`
`of that judgment. Fourth, the state-court judgment must have been rendered before the district
`
`court proceedings commenced.” Hoblock, 422 F.3d at 85 (cleaned up). As the Court has
`
`previously noted, see ECF Nos. 15 & 17, all four requirements are met here with respect to
`
`Plaintiff’s claim to quiet title to 104 Bald Hill Road.
`
`First, Plaintiff lost in state court when the Connecticut Superior Court denied her motion
`
`to open the judgment and concluded that title in the property vested in U.S. Bank. Second,
`
`Plaintiff’s injury—i.e., loss of her home—was caused by the Superior Court’s judgment. ECF No.
`
`26 at 6. Third, Plaintiff asks this Court to effectively overrule the Superior Court’s judgment by
`
`“remand[ing] this case back to the Superior Court for the sole purpose of instructing the [Superior
`
`Court] to grant ‘Quiet Title.’” Pl.’s Opp. to Cheverko Mot., ECF No. 51 at 3; ECF No. 26 at 8.
`
`Fourth, the foreclosure judgment was rendered before Plaintiff sought relief from this Court. As
`
`9
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 10 of 38
`
`all of the requirements of the Rooker-Feldman doctrine are satisfied, the Court lacks subject matter
`
`jurisdiction over Plaintiff’s quiet title claim.
`
`Because the Court lacks subject matter jurisdiction over this claim, it is dismissed without
`
`prejudice, see Katz v. Donna Karan Co., 872 F.3d 114, 121 (2d Cir. 2017) (noting that when a
`
`claim is dismissed for lack of subject matter jurisdiction, the disposition “cannot be entered with
`
`prejudice”), but without leave to amend. As the Court has previously noted, however, Plaintiff
`
`can theoretically proceed with her request for monetary damages for injuries sustained as a result
`
`of what she claims is a fraudulently-procured state court judgment, to the extent she states a
`
`cognizable claim for fraud. See ECF No. 17.
`
`II.
`
`PERSONAL JURISDICTION OVER DEFENDANT U.S. BANK
`
`U.S. Bank has moved for dismissal under Federal Rules of Civil Procedure 12(b)(2) and
`
`12(b)(5), contending that, because it was not properly served, the Court lacks personal jurisdiction
`
`over it. For the reasons described below, the Court denies U.S. Bank’s motion to dismiss as to
`
`personal jurisdiction and insufficient service of process.
`
`A. Legal Standard
`
`Federal Rule of Civil Procedure 12(b)(2) permits a defendant to raise lack of personal
`
`jurisdiction as a defense by motion before a responsive pleading. The plaintiff bears the burden
`
`of establishing personal jurisdiction over the defendant. MacDermid, Inc. v. Deiter, 702 F.3d 725,
`
`727 (2d Cir. 2012). “Before a federal court may exercise personal jurisdiction over a defendant,
`
`[however,] the procedural requirement of service of summons must be satisfied.” Omni Cap. Int’l,
`
`Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). A defendant may move to dismiss a complaint
`
`for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). In
`
`circumstances like those at issue here, a court’s analyses under Rules 12(b)(2) and 12(b)(5) may
`
`10
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 11 of 38
`
`merge: if service of process on U.S. Bank was insufficient, then the Court may not exercise
`
`personal jurisdiction over it. See Fantozzi v. City of New York, 343 F.R.D. 19, 25 (S.D.N.Y. 2022)
`
`(“While Rules 12(b)(5) and 12(b)(2) are independent bases upon which dismissal may be granted,
`
`when service of process is at issue, they are ‘closely interrelated.’” (quoting 5B Charles A. Wright
`
`& Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed. 2022))).
`
`Federal Rule of Civil Procedure 4 sets forth the rules for service of process in a civil
`
`action. Rzayeva v. United States, 492 F. Supp. 2d 60, 74 (D. Conn. 2007). “A motion to dismiss
`
`pursuant to Rule 12(b)(5) must be granted if the plaintiff fails to serve a copy of the summons and
`
`complaint on the defendants pursuant to Rule 4 of the Federal Rules.” Id. “Once validity of
`
`service has been challenged, it becomes the plaintiff’s burden to prove that service of process was
`
`adequate.” Id.
`
`The manner in which service can be made on a defendant under Rule 4 depends on the
`
`defendant’s status. If the defendant is a domestic corporation, partnership, or association, Rule
`
`4(h) provides that service can be made according to the relevant state law for serving a summons
`
`in the state where the district court is located or where service is made, or by delivering a copy of
`
`the summons and the complaint to “a managing or general agent” or “any other agent authorized
`
`by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(h)(1). Unless service
`
`is waived pursuant to Fed. R. Civ. P. 4(d), a plaintiff must file an affidavit proving service. Fed.
`
`R. Civ. P. 4(l)(1).
`
`If a plaintiff does not properly serve a defendant within ninety days after filing the
`
`complaint, Rule 4(m) provides that “the court—on motion or on its own after notice to the
`
`plaintiff—must dismiss the action without prejudice against that defendant or order that service be
`
`made within a specified time.” That Rule further provides that, “if the plaintiff shows good cause
`
`11
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 12 of 38
`
`for the failure, the court must extend the time for service for an appropriate period.” Id. Courts in
`
`this circuit have extended the deadline for a plaintiff to effectuate proper service pursuant to Rule
`
`4(m) in two ways. First, the court must extend the service deadline if the plaintiff can demonstrate
`
`“good cause,” which is a high standard, generally requiring “exceptional circumstances where the
`
`plaintiff’s failure to serve process in a timely manner was the result of circumstances beyond her
`
`control.” Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 597 (E.D.N.Y. 2013)
`
`(cleaned up).
`
`Second, the court may extend the service deadline in its discretion, “even where there is no
`
`good cause shown.” Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007); Mares v.
`
`United States, 627 F. App’x 21, 23 (2d Cir. 2015) (summary order). Courts considering whether
`
`to exercise discretion to extend the service deadline in the absence of good cause consider factors
`
`such as: whether a refiled action would be time-barred; whether the defendant had actual notice
`
`of the claims; whether the defendant attempted to conceal the defect in service; and whether the
`
`defendant would be prejudiced by an extension of the service period. See, e.g., John v. City of
`
`Bridgeport, 309 F.R.D. 149, 154 (D. Conn. 2015); Jordan, 928 F. Supp. 2d at 598.
`
`B. Discussion
`
`Plaintiff could have properly served U.S. Bank in one of at least three ways: (1) by serving
`
`the Connecticut Secretary of State and mailing to U.S. Bank, via registered or certified mail, a true
`
`and attested copy of the summons and complaint with an endorsement of the service upon the
`
`Connecticut Secretary of State pursuant to Conn. Gen. Stat. § 52-59b(c); (2) by serving U.S. Bank
`
`in the method provided under state law in the state in which service is made; or (3) by serving an
`
`officer, managing or general agent, or any other agent authorized by appointment or by law to
`
`receive service of process and mailing a copy of the summons and complaint to U.S. Bank pursuant
`
`12
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 13 of 38
`
`to Fed. R. Civ. P. 4(h)(1)(B). Plaintiff served U.S. Bank by sending the summons and complaint
`
`via certified mail to the address “60 LEXINGTON AVE, SAINT PAUL MN 55107-2292.”3 See
`
`Proof of Service, ECF No. 38 at 4. Because mailing the complaint and summons by certified mail
`
`to U.S. Bank alone did not constitute proper service under any of the available methods, U.S. Bank
`
`is correct that it has not been properly served.
`
`U.S. Bank makes no mention of the Court’s authority to extend the service deadline, but
`
`the Court will sua sponte consider whether to extend the service deadline pursuant to Rule 4(m).
`
`Plaintiff’s pro se status undoubtedly earns her a certain degree of solicitude, such as “leniency in
`
`the enforcement of . . . procedural rules.” See Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir.
`
`2010). However, this solicitude does not automatically create the type of “exceptional
`
`circumstance” contemplated by Rule 4(m)’s good cause requirement. See Jordan, 928 F. Supp.
`
`2d at 598.
`
`Nevertheless, the Court will exercise its discretion to extend the service deadline pursuant
`
`to the provision of Rule 4(m) authorizing such discretion. Three out of four factors support the
`
`Court’s exercise of discretion in these circumstances. See John, 309 F.R.D. at 154. First, any
`
`refiled action by Plaintiff could be time-barred, which weighs heavily in favor of extending the
`
`service deadline. As discussed below, the Court dismisses Plaintiff’s federal claims without leave
`
`to amend, but at least one of Plaintiff’s remaining state law claims—for example, the CUTPA
`
`claim—may be barred by the statute of limitations. See Conn. Gen. Stat. § 42-110g(f) (setting
`
`three-year statute of limitations for CUTPA claims); see also ECF No. 42-1 at 16 (arguing that the
`
`statute of limitations for Plaintiff’s CUTPA claim based on the allegedly fraudulent foreclosure
`
`judgment would have begun running on March 13, 2019). “[C]ourts have consistently considered
`
`
`3 U.S. Bank contends that its address is 60 Livingston Avenue in Saint Paul, Minnesota, not 60 Lexington Avenue.
`See U.S. Bank & SPS’s Opening Br., ECF No. 42-1 at 13.
`
`13
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 14 of 38
`
`the fact that the statute of limitations has run on a plaintiff’s claim as a factor favoring the plaintiff
`
`in a Rule 4(m) analysis.” Beauvoir v. U.S. Secret Serv., 234 F.R.D. 55, 58 (E.D.N.Y. 2006) (noting
`
`that “this factor alone may be sufficient to justify extending the time for service”).
`
`Second, U.S. Bank had actual notice of Plaintiff’s claims. U.S. Bank, SPS, and Attorney
`
`Cheverko are all represented by same attorney in this action: Attorney Cheverko herself. Because
`
`Attorney Cheverko had notice of Plaintiff’s claims by virtue of representing herself and SPS in the
`
`action, then it necessarily follows that U.S. Bank, which is also represented by Attorney Cheverko,
`
`would have had actual notice. While it is true that proper service on Attorney Cheverko and SPS
`
`does not constitute proper service on U.S. Bank, it is demonstrably clear that U.S. Bank has been
`
`on notice of Plaintiff’s claims since Attorney Cheverko and SPS were served. Thus, this factor
`
`also weighs in favor of extending the time for Plaintiff to effectuate proper service.
`
`The third factor, concerning whether U.S. Bank attempted to conceal the defect in service,
`
`weighs against extending the service deadline, if marginally. See John, 309 F.R.D. at 156
`
`(extending the service deadline despite the defendant promptly raising the defect in service);
`
`Jordan, 928 F. Supp. 2d at 599 (reasoning that this factor was “inapplicable” where the defendant
`
`promptly raised the defect in service because “this factor alone does not offset the numerous
`
`reasons that support granting [the] plaintiff additional time to correct service of process”). U.S.
`
`Bank timely raised the issue of improper service in the present motion to dismiss filed jointly with
`
`SPS. Still, this factor only marginally weighs against extending the service deadline given the
`
`possibility that at least one of Plaintiff’s claims may be time-barred and that U.S. Bank is
`
`represented by the same attorney as two of the other Defendants.
`
`Finally, the fourth factor—prejudice (or lack thereof) to the defendant—pushes the balance
`
`of factors in favor of extending the service deadline. U.S. Bank will not be prejudiced by an
`
`14
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 15 of 38
`
`extension of the service deadline, and if U.S. Bank has suffered any prejudice from the delay in
`
`proper service, such prejudice is “slight” because Plaintiff’s failure to timely serve U.S. Bank has
`
`aged the case by months, not years. See John, 309 F.R.D. at 156. Moreover, the likelihood of
`
`prejudice is diminished in light of U.S. Bank’s knowledge of the existence of the action, and does
`
`not outweigh the other reasons for granting an extension. On balance, an extension of the service
`
`deadline is justified here.
`
`In light of the circumstances of this case, the Court will exercise its discretion to extend
`
`the deadline nunc pro tunc for Plaintiff to effectuate proper service on U.S. Bank. Accordingly,
`
`U.S. Bank’s motion to dismiss on the basis of lack of personal jurisdiction and insufficient service
`
`is denied without prejudice to renewal. By April 11, 2025, Plaintiff must file proof of proper
`
`service on U.S. Bank. As it has been more than a year since Plaintiff’s initial complaint was filed
`
`and because the Court has explained how Plaintiff can properly serve U.S. Bank, the Court will
`
`not grant any further extension of the deadline, and will dismiss Plaintiff’s remaining state law
`
`claims against U.S. Bank if proof of service is not timely filed.
`
`III.
`
`FAILURE TO STATE A CLAIM
`
`The Court next turns to U.S. Bank, SPS, and Attorney Cheverko’s arguments that Plaintiff
`
`fails to state a claim for relief under RESPA, FDCPA, Section 1983, civil RICO, TILA, and the
`
`CTA. For the reasons described below, the Court concludes that the foregoing claims are barred
`
`by res judicata, time-barred, or should otherwise be dismissed for failure to state a claim for relief,
`
`and leave to amend is not appropriate.
`
`As a preliminary matter, Plaintiff makes new factual allegations and raises new claims in
`
`her oppositions to the motions to dismiss. While a brief opposing a motion to dismiss is not the
`
`appropriate mechanism to amend a complaint, see Philippeaux v. United States, No. 10 Civ. 6143
`
`15
`
`

`

`Case 3:23-cv-01329-SVN Document 104 Filed 03/28/25 Page 16 of 38
`
`(NRB), 2011 WL 4472064, at *4 (S.D.N.Y. Sept. 27, 2011), the Court will consider these new
`
`allegations because Plaintiff is proceeding pro se. See Davila v. Lang, 343 F. Supp. 3d 254, 267
`
`(S.D.N.Y. 2018) (when a plaintiff is proceeding pro se, a court “may consider new facts raised in
`
`opposition papers to the extent that they are consistent with the [amended] complaint, treating the
`
`new factual allegations as amending the [amended] complaint”); see also Walker v. Schult, 717
`
`F.3d 119, 122 n.1 (2d Cir. 20