16-2291 Malick v. J.P. Morgan Chase Bank, N.A.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of December, two thousand nineteen.

PRESENT: DENNIS JACOBS, SUSAN L. CARNEY, MICHAEL H. PARK, Circuit Judges. _____________________________________

Abu Hashem W.Q. Malick,

Plaintiff-Appellant,

Shujaat Q. Malick,

Plaintiff,

v. 16-2291

JP Morgan Chase Bank, N.A., Jointly and Severally, Safeguard Properties, Inc., Jointly and Severally,

Defendants-Appellees. _____________________________________

1 FOR PLAINTIFF-APPELLANT: ABU HASHEM W.Q. MALICK, pro se, Fairfield, CT.

FOR DEFENDANT-APPELLEE JP MORGAN CHASE BANK, N.A.: DANIEL J. KRISCH (Brian D. Rich, on the brief), Halloran & Sage LLP, Hartford, CT. FOR DEFENDANT-APPELLEE SAFEGUARD PROPERTIES, INC.: BERNARD F. GAFFNEY (Milanna Datlow, on the brief), Wilson Elser Moskowitz Edelman & Dicker LLP, Hartford, CT.

Appeal from a judgment of the United States District Court for the District of Connecticut,

(Bryant, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on June 3, 2016, is AFFIRMED.

Plaintiff-Appellant Abu Hashem W.Q. Malick, now proceeding pro se, appeals the district

court’s judgment in favor of defendants JP Morgan Chase Bank, N.A. (“JPM”) and Safeguard

Properties, Inc. (“Safeguard”) after a bench trial in this diversity action at which he was represented

by counsel. In June 2007, Malick obtained a mortgage loan on his house in Fairfield, Connecticut

(the “Property”) from Washington Mutual Savings Bank, which JPM purchased in 2008. He

executed a mortgage deed with the lender (the “Mortgage Deed”) to effect the transaction. Motion

to Reconsider at 22-36, Malick v. J.P. Morgan Chase Bank, N.A., No. 13-cv-669 (D. Conn. Oct.

13, 2015), ECF No. 79. According to the findings of facts of the District Court after a bench trial,

Malick did not make any payments on the loan after August 2008 and began an (unrelated) term

of incarceration in November 2008. Malick v. J.P. Morgan Chase Bank, N.A., No. 13-cv-669,

, at *2 (D. Conn. May 16, 2016). While incarcerated, Malick asked his brother Sujatt

2 to monitor the Property, but Sujatt checked on the Property only occasionally and did not perform

maintenance of any kind.

After observing the deterioration of the Property, JPM hired mortgage service providers

LPS Field Services, LLC (LPS), and later, Safeguard, to monitor the Property. Id. at *2, *5. Before

Malick was released from prison in May 2012, the Property had deteriorated from lack of

winterization and general neglect; in addition, unknown persons had vandalized the Property and

had stolen durable goods, copper piping, and the personal effects of Malick. Id. at *2-4. In the

period from November 2008 to May 2012, during which the Property was vacant, JPM, acting

through LPS, changed the locks and otherwise attempted to secure the Property. Id. at *2-3. After

Malick was released from prison, Safeguard, the new mortgage service provider, checked on the

Property several times to confirm its occupancy status. Id. at *5. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal, to which we

refer only as necessary to explain our decision to affirm.

We construe Malick’s brief as mainly challenging the district court’s judgment for

defendants on Malick’s state law claims for conversion, negligence, unfair debt collection

practices, and unfair trade practices. “On appeal from a bench trial, we review conclusions of law

de novo and findings of fact for clear error.” 32BJ N. Pension Fund v. Nutrition Mgmt. Servs. Co.,

, 97–98 (2d Cir. 2019) (internal quotation marks omitted).

Malick first challenges the district court’s finding for JPM on Malick’s conversion claim.

Under Connecticut law, Malick must prove that defendants engaged in “unauthorized assumption

and exercise of the right of ownership over property belonging to [Malick], to the exclusion of

[Malick’s] right.” Mystic Color Lab, Inc. v. Auctions Worldwide, LLC,

(2007).

3 We find no clear error in the district court’s determination that defendants did not do so.

Malick also failed to establish that defendants owed any duty to him to act to prevent theft

or damage to the Property, as is required to sustain a Connecticut law negligence claim. See

Grenier v. Comm’r of Transp.,

, 538-39 (2012) (ruling that defendant’s duty to

plaintiff is an element of negligence claim). The Mortgage Deed expressly placed a duty on Malick

to maintain the Property. See Mortgage Deed at 28 ¶ 7 (“Whether or not Borrower is residing in

the Property, Borrower shall maintain the Property in order to prevent the Property from

deteriorating or decreasing in value due to its condition.”). The Mortgage Deed explicitly disclaims

any duty of JPM to act to protect, secure, or repair the Property.

at 29 ¶ 9 (“Although Lender

may take action [to protect, secure, and repair the Property], Lender does not have to do so and is

not under any duty or obligation to do so.” (emphasis added)). Malick identifies no common law

ground for finding a duty owed to him by defendants. We therefore affirm the court’s dismissal of

Malick’s negligence claims.

Malick further did not establish that JPM violated the Connecticut Fair Debt Collection

Practices Act, Conn. Gen. Stat. § 36a-646 (“No creditor shall use any abusive, harassing,

fraudulent, deceptive or misleading representation, device or practice to collect or attempt to

collect any debt.”), by entering the premises and changing the locks, or that Safeguard violated the

law by sending notices and making visits to the Property. We agree with the District Court that the

actions taken by JPM and Safeguard cannot reasonably be said to be “abusive, harassing,

fraudulent, deceptive or misleading,” id., since the Mortgage Deed explicitly authorized them. The

document granted JPM, as lender, the right to protect its interest in the Property in the event that

Malick “fail[ed] to perform the covenants and agreements contained in [the Mortgage Deed]” or

4 “abandoned” the Property. Mortgage Deed at 29 ¶ 9. We find no clear error in the District Court’s

determinations that Malick breached the covenant not to let the Property deteriorate and that he

abandoned the Property. JPM was therefore entitled to “do and pay for whatever is reasonable and

appropriate” to protect its interest in the Property, including “protecting and/or assessing the value

of the Property, and securing and/or repairing the Property.” Id. The Mortgage Deed specifies that

“Securing the Property includes, but is not limited to, entering the Property to make repairs [and]

change locks.” Id. Furthermore, it allows “Lender or its agent [to] make reasonable entries upon

and inspections of its Property.” Id. at 28 ¶ 7. None of defendants’ acts fell outside of their

authority.

Malick also appeals the District Court’s dismissal of his claim brought under the

Connecticut Unfair Trade Practices Act (CUTPA).

-110b. CUTPA provides

that “[n]o person shall engage in . . . unfair or deceptive acts or practices in the conduct of any

trade or commerce.”

at § 42-110b(a). Connecticut courts apply the following test for CUTPA

claims:

To prevail on a CUTPA claim, the plaintiffs must prove that (1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce and (2) [plaintiffs] suffered an ascertainable loss of money or property as a result of the defendant’s acts or practices.

Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co.,

(2008) (internal quotation

marks and citations omitted). Malick’s CUTPA claims fall short, as the District Court ruled,

because the actions taken by JPM and Safeguard were not “unfair or deceptive” and were expressly

contemplated by the Mortgage Deed. See Edmands v. CUNO, Inc.,

(2006)

(“Because . . . [the relevant acts] conformed in all respects to the express terms of the parties’

5 agreements, we, therefore, have great difficulty identifying the wrong [under CUTPA] the

plaintiffs seek to assert.”). Malick cannot dispute that under the Mortgage Deed, JPM was

permitted to secure the Property and to employ a third party—here, Safeguard—to monitor the

Property. Safeguard’s repeated visits to the house in 2012 and 2013 were reasonable considering

the recent abandonment of the house. Malick alleges that those visits caused only emotional harm,

which is not enough to establish a loss under CUTPA. Di Teresi v. Stamford Health Sys., Inc.,

(2014) (“[P]laintiffs’ claim of emotional distress does not constitute an

ascertainable loss of money or property for purposes of CUTPA.”). Malick cites no caselaw or

regulations interpreting CUTPA that would render defendants’ actions “unfair or deceptive” for

CUTPA purposes. Without more, his claim must be rejected.

Malick’s remaining challenges to the district court’s rulings also fall short. We identify no

abuse of discretion in the district court’s denial of his last-minute motion to postpone the trial or

his counsel’s motion to withdraw. The court gave ample prior notice of the trial date and Malick

did not move to postpone the trial until the very eve of the proceeding. Payne v. Jones,

(2d Cir. 2013) (“Because continuances can be highly disruptive to the courts and the

parties, especially when granted close to the start of trial, trial courts are entrusted with broad

discretion to decide whether the stated purpose of a continuance warrants the disruption and delay

of granting one.” (internal citations omitted)); Whiting v. Lacara,

(2d Cir. 1999)

(“[T]he interest of the district court in preventing counsel from withdrawing on the eve of trial is

substantial.”). Nor did the district court exceed its proper discretion by denying Malick’s motion

to reconsider its prior rulings, since that motion made arguments not first presented in opposition

to defendants’ motions to dismiss and for summary judgment. See Phillips v. City of New York,

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(2d Cir. 2015) (holding that “arguments . . . raised for the first time in plaintiffs’

motion for reconsideration . . . were not properly presented to the district court”). Finally, the

district court committed no error by admitting testimony regarding Malick’s prior conviction for

embezzlement. Fed. R. Evid. 609(a). This testimony was relevant to his veracity and was not

unduly prejudicial. Fed. R. Evid. 403.

We have considered all of Malick’s remaining arguments and conclude that they have no

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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