Tanasi v. CitiMortgage, Inc. (257 F. Supp. 3d 232, 2017)

RULING ON DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

VICTOR A. BOLDEN, UNITED ■ . STATES DISTRICT JUDGE

Table of Contents

I. Introduction... 242

II. Factual Allegations,. .243

A. State Foreclosure Proceedings. . .244

B. Mortgage Modification Requests ...245

C. Other Correspondence between the Tanasis and CitiMortgage.. .246

D. Single Point of Contact.. .247

E. Defendant M & T Bank.'. .247

F. The Current Proceedings,. .248

III. Standard of Review.. .249

IV. , Discussion.-. .250

A. Motion to Dismiss for Lack of Jurisdiction under Rule 12(b)(1).. .250

IV The Rooker-Feldman Doctrine ...250

2. The Tanasis’ Claims '.. .251 ‘

a. The Tanasis do not Invite Review and Rejection of the Foreclosure Action.. .252

b. The Tanasis do not Complain of an injury Caused by a State Court Judgment.. .253 ’•

3. Res Judicata.. .255

a. The Transaction Test and Foreclosure Actions.. .256

b. The Tanasis’ Claims... 259

B. Motion to Dismiss, under Rule 12(b)(6).. .261

1.The Tanasis’ RESPA Claims.. .262

a. CitiMortgage’s Liability under 12 U.S.C. § 2605(e).. .262

b. CitiMortgage’s Liability under Regulation X.. .265

i. Liability under 12 C.F.R. § 1024.36 for Failure to Respond to RFIs.. .265

ii. Liability under 12 C.F.R. § 1024.35 for Failure to Respond to NOEs.. .267

c. Damages under RE SPA., .269

i. Emotional Distress Damages, . .269

ii. Postage Costs.. .271

iii. Miscellaneous Damages.. .271

iv. Statutory Damages.. .271

2. The Tanasis’ ' Negligence Claims,.. 272

a. CitiMortgage’s Duty of Care, Generally. . .272

b. Negligent Infliction of Emotional Distress.. .273

3. The Tanasis’ CUTPA Claims.. .274

a. Unfair Business Practice... 275

b. The Tanasis’ Ascertainable Loss under CUTPA.. .275' '

4. Statute . of Limitations for Negligence and CUTPA claims.. .277

5. Defendant M & T Bank.. .278

V.Conclusion... 279

I. Introduction

Richard and Athansula Tanasi (“the Ta-nasis”) bring this action against CitiMort-gage, Inc. (“CitiMortgage”), which serviced a mortgage on their home, and M & T Bank Corporation (“M & T”), the successor by merger to Hudson City Savings Bank (“Hudson”), which owned the mortgage. The Tanasis allege that both Defendants violated the Real Estate Settlement Procedures Act of 1974 (“RESPA”), 12 U.S.C. 2601 et seq., and its implementing regulations, specifically Regulation X Mortgage Servicing Final Rule, 78 F.R. 10695 (February 14, 2013), 12 CFR § 1024 (“Regulation X”). They also allege that Defendants breached a duty of care owed to them under those regulations and a related consent decree. Finally, they allege that Defendants violated the Connecticut Unfair Trade Practices Act (“CUTPA”).

Defendants move to dismiss all three causes of action. Defendants first argue that this Court lacks jurisdiction over the Tanasis’ claims because of the Rooker-Feldman doctrine and res judicata. Defendants further argue that the Tanasis fail to state claims upon which relief can be granted.

The Couit concludes that jurisdiction is permissible under Rooker-Fciérnan, but agrees with Defendants that most of the Tanasis’ claims are barred by res judicata and cannot be asserted here. For the remaining claims, it reviews Defendants’ motion to dismiss under Rule 12(b)(6), and concludes that the Tanasis’ remaining RESPA, CUTPA, and negligence claims cannot be dismissed. Accordingly, Defendants’ motion to dismiss is GRANTED in part and DENIED in part.

Specifically, regarding Claim One, the Court must dismiss under res judicata the claims that Defendants violated RESPA and Regulation X by failing to acknowledge or properly review loss mitigation applications (Compl., ¶¶ 71-81). This includes claims that arise under Regulation X’s 12 C.F.R. § 1024.41. It also must dismiss under Rule 12(b)(6) the Tanasis’ claims under Section 2605(e) of RESPA relating to qualified written requests that did not pertain to “servicing” and therefore were not actionable under the statute. While Count One is not dismissed, because the Tanasis’ claims under Regulation X’s 12 C.F.R. § 1024.36 and 1024.35 remain, the Court notes the limitations on their damages relating to these claims. The Court dismisses any of the Tanasis’ claims for RESPA damages relating to “costs related to stripping the Property of equity,” “unnecessary costs of maintaining the Property due to delayed foreclosure,” and the creation of a “public record of foreclosure.” See Compl. ¶¶ 61-65. It also dismisses the Tanasis claims for compensatory damages for costs relating to the preparation of requests for information, because these costs would have been incurred regardless of CitiMortgage’s alleged violations.

In Claim Two, the Court dismisses under res judicata the Tanasis’ claims concerning Defendants’ negligent processing of their loss mitigation and mortgage modification applications. Because some of the negligence claim arises out of other acts, the Court does not dismiss Claim Two in its entirety.

There are many components to Claim Three, in which the Tanasis allege violations of CUTPA. Of these, the claim that CitiMortgage violated CUTPA by unfairly applying its existing loss mitigation policies, see Compl. at ¶ 149(d), is dismissed under res judicata.

II. Factual Allegations

In 2007, Richard Tanasi and Athansula Tanasi (“the Tanasis”) bought a piece of property at 27 Briarwood Drive in Old Saybrook, Connecticut (the “Property”). First Amended Complaint (“Compl.”), ECF No. 18, ¶4. The Property was encumbered by a first-position mortgage loan in the principal amount of $656,250, dated August 2, 2007, which was given as security for a promissory note of the same date and recorded on August 6, 2007. Id. at ¶ 12. The original underwriter sold or otherwise transferred the mortgage to Wa-chovia Savings Bank and CitiMortgage purchased the mortgage shortly after-wards. Id. CitiMortgage then sold the mortgage to Hudson on or about November 27, 2007, but continued to service the mortgage. Id. at ¶ 12. Hudson later merged with Defendant M & T Bank. Id. at ¶¶ 5. Both CitiMortgage and M & T Bank are corporations organized under the laws of New York. Id. at ¶¶ 2-3.

In 2010, the Tanasis fell behind on their mortgage payments. CitiMortgage initiated a foreclosure action in 2011 and foreclosed on the Property on March 7, 2016. See CitiMortgage’s Mot., Exhibit C, ECF No. 26-4, Docket (“Foreclosure Docket”). Before and during the foreclosure process, the Tanasis communicated with CitiMort-gage about their mortgage. These communications — as well as the reach of consumer-protection statutes, the relative duties of state and federal courts, and the tension between the finality of judgments and the promise of full relief — are at the heart of this case.

A. State Foreclosure Proceedings

The Tanasis missed their first mortgage payment on or about July 1, 2010, and did not make any payments after that date. CitiMortgage’s Mot., Exhibit D, ECF No. 26-5, CitiMortgage’s Motion to Terminate Mediation Stay, MMX-cv-11-6005630-S (Middlesex Superior Court), 2. They allege, however, that CitiMortgage solicited them for loss mitigation on their mortgage as early as June 2009. Compl. ¶ 14. The Tanasis applied for a mortgage modification in response to one of these solicitations, a letter they received from CitiMortgage on June 17, 2009. Id. Citi-Mortgage denied their application on November 27, 2009. Id. at ¶ 15. On December 1, 2009, CitiMortgage followed up with another letter, which stated that the Tanasis’ income exceeded the allowable amount under the Home Affordable Modification Program (“HAMP”) and that the Tanasis had insufficient credit for modification. Id. The Tanasis applied for loss mitigation two more times before CitiMortgage commenced a foreclosure action, allegedly at “CitiMortgage’s request.” Id. CitiMort-gage denied these applications on October 6, 2010 and November 14, 2010. Id.

CitiMortgage filed a foreclosure action in Connecticut Superior Court (the “Foreclosure Action”) on July 18, 2011. See Compl. ¶ 18; Foreclosure Docket, p. 1. Shortly thereafter, the Tanasis filed a request to participate in the court’s foreclosure mediation program, which was granted on August 28, 2011. See Foreclosure Docket, 102.00. The parties met in “numerous mediation sessions” between October 26, 2011 and December 4, 2012. CitiMort-gage’s Motion to Terminate Mediation Stay, 4.

On December 27, 2012, CitiMortgage moved to terminate the mediation efforts. Id. The Tanasis did not object to this motion and the Superior Court granted it on January 4, 2013. Id. On November 11, 2013, the Tanasis filed an answer and special defense to the Foreclosure Action, admitting that they had signed the Note and Mortgage, but denying the “authenticity of, and authority to make, each signature on the Note.” CitiMortgage’s Mot.,. Ex. E, ECF No. 26-6, Mem. of Decision on Mot. for Summ. J., MMX-cv-ll-6005630-S (Middlesex Superior Court).

On July 10, 2014, CitiMortgage 'moved for summary judgment in the foreclosure case. See Foreclosure Docket, 138.00. The Superior Court granted this motion on October 10, 2014. See CitiMortgage’s Mot., Ex. E, Mem. of Decision on Mot. for Summ. J. On July 23, 2015, the Tanasis moved to dismiss the foreclosure action, contesting CitiMortgage’s standing to commence the foreclosure action and arguing that it “fraudulently invoked the rebutta-ble presumption of ownership.” Foreclosure Docket, 149.00. This motion was denied. Id. at 149.10. On March 7, 2016, the Superior Court granted CitiMortgage a judgment of strict foreclosure and'found that the outstanding debt under the Note and Mortgage was' $960,871.75. See Citi-Mortgage’s Mot., Ex. H, ECF No. 26-9, Notice of Judgment of Strict Foreclosure. In March of 2016, before the extinguishment of their right of redemption, the Tanasis filed an appeal with the Connecticut Appellate Court. Foreclosure Docket, 171.00. On May 11, 2016, the Tanasis filed a motion for articulation of the Superior Court’s decision on their motion to dismiss. Id. at 172.00. After their motion was granted, the Superior Court published an articulation of its factual and legal basis for denying the Tanasis’ motion to dismiss the Foreclosure Action. Id. at 175.00.

B. Mortgage Modification Requests

The Tanasis allege that they have been “engaged in loss mitigation efforts with CitiMortgage continuously since 2009,” Compl. ¶ 14, and many of their claims concern CitiMortgage’s improper solicitation and dispensation of their loss mitigation and mortgage modification applications. The Tanasis also allege that CitiMortgage moved for summary judgment on the Foreclosure Action when several of their mortgage modification and loss mitigation applications were pending. Id. at ¶ 26.

On February 10, 2012, Beckett Law, LLC submitted a mortgage modification application on behalf of the Tanasis. Compl. ¶18. CitiMortgage acknowledged the request on March 7, 2012, when it requested additional documents, which the Tanasis later submitted. Id. On May 10, 2012, CitiMortgage denied the mortgage modification application. Id. Less than one month later, the Tanasis allege, CitiMort-gage solicited them to submit a new mortgage modification application. Id. at ¶ 19. The Tanasis completed this application on November 2, 2012. Id. CitiMortgqge allegedly did not respond to the Tanasis’ November 2, 2012 modification application.

Instead of responding to their pending applications, CitiMortgage solicited the Ta-nasis to modify their mortgage again. Citi-Mortgage allegedly sent letters to the Ta-nasis on January 7, 2014 and December 17, 2015, asking them to submit new mortgage modification applications. Compl. at ¶¶ 18-20. On January 28, 2016, as well as on several dates in February and March of that year, CitiMortgage allegedly communicated by mail and e-mail with the Tana-sis, requesting loss mitigation applications and stating that “[wjhether you want to remain in your home dr want to consider other alternatives, we are here to work with you to find the best option for your current situation.” Id: at ¶ '39.

While it continued to solicit mortgage modification applications from the Tanasis, CitiMortgage allegedly failed to respond to the many applications that the Tanasis did submit. The Tanasis allege that CitiMort-gage generally had a policy of “automatically closing mortgage modification applications internally after they were open for sixty days.” Compl. ¶ 24. The Tanasis allegedly applied, to modify their mortgage three times after Regulation X became effective on January 10, 2014: On February 21, 2014, July 3, 2Q14, and August 17, 2015. Id. at ¶¶20, 23, 26. CitiMortgage never responded to these applications. Id.

The Tanasis also allege that CitiMort-gage “had a policy of automatically requesting duplicative information for loss mitigation applications every 30 days in order to avoid exercising reasonable diligence in completing an application.” Compl. at ¶ 25. CitiMortgage allegedly responded to loss mitigation applications with requests for bank statements, pension and pay stubs', property tax forms, and affidavits of hardship. See id. at ¶¶ 23, 27-28. • The Tanasis allege that CitiMortgage requested additional documents on eleven occasions in 2014 and twice in 2015. Id.

C. Other Correspondence between the Tanasis and CitiMortgage

.The Tanasis also allege that CitiMort-gage failed to respond to many of their requests for information, some of which, they allege, were qualified written requests, requests for information, or notices of error under RESPA. They allege that this “persistent and ongoing failure to provide adequate responses ... deprived [them] of information to which they are legally entitled about their mortgage and ... prevented them from making accurate and informed choices about the best avenue to save their home.” Compl. ¶ 87.

The Tanasis allege that they mailed two qualified written requests to CitiMortgage, seeking “information about the payoff of their loan and the holder of their note,” on January 13, 2014 (¶ 21) and March 5, 2015 (¶ 34). CitiMortgage responded to both requests in a letter dated April 2, 2015, “arguing that it was not required to provide a response because the Plaintiffs were in an active bankruptcy case.” Id. at 35. The Tanasis had filed- for bankruptcy on February 10, 2011, but the case was closed on .July 6, 2011. Id. at n.2. They therefore allege that CitiMortgage was required under RESPA to respond to their requests.

The Tanasis also allege that they requested information from CitiMortgage on or about October 27, 2014 (¶ 83), March 16, 2016 (¶ 40),' March 30, 2016 (¶ 41), and May 11, 2016 (¶42). The March 16, 2016 request sought information about “(1) alleged, investor restrictions, (2) evidence that CitiMortgage submitted waiver requests, and (3) evidence of CitiMortgage’s efforts to obtain a waiver of investor restrictions.” Id. at ¶ 40. CitiMortgage allegedly responded to the March 16, 2016 request with a statement that the information was “privileged.” Id.

In the March 30, 2016 request, the Ta-nasis sought -information about “(1). the owner/assignee of the loan, (2) the servi-cer’s participation in HAMP and the national mortgage settlement, and (3) the parameters of loan modification programs.” Id. at ¶ 41. CitiMortgage allegedly responded to the March 30, 2016 request on April 14, 2016, with , information about the owner/assignee of the loan but not about loan modification programs. Id.

■ In the May 11,2016 request, the Tanasis sought information about -“broker prices opinions and appraisals ... to see if Citi-Mortgage was engaging in any meaningful loss mitigation review.” Id. at ¶42. The Complaint does not allege whether Citi-Mortgage responded to the May 11 request. The Tanasis contend that CitiMort-gage failed to respond to another request, dated October 27, 2014, but the Complaint does not include any allegations about the content of that request. Id. at ¶ 83.

The Tanasis also allege that CitiMort-gage received two notices of error on their behalf, on July 6, 2015 (¶ 45) and May 13, 2016 (¶ 43). In the first, the “errors asserted included 1) not answering as to if the Investor participates in the HAMP program ..., 2) not responding as to if the investor participates in the FHA-HAMP program or in the National Mortgage Settlement Modification; 3) not replying as to what proprietary modification programs are available, and 4) not ■ providing the surplus or deficit of income requirements for proprietary modifications.” Id. at ¶ 45. CitiMortgage, they allege, did not respond. Id.

The second alleged notice of error stated that CitiMortgage “failed to 1) provide evidence of its efforts at waiving investor restrictions, 2) provide any information about its servicer participation agreement for HAMP or its compliance with the National Mortgage Settlement, 3) acknowledge the three previous requests for information, and 4) provide information about the loss mitigation options the Plaintiffs were eligible for.” Compl. ¶43. CitiMort-gage allegedly responded to this notice in a letter dated June 6, 2016, in which it “1) claimed that it was not required to give Plaintiffs BPOs or appraisals, 2) it argued that it had exercised all efforts to qualify the Plaintiffs for all Home Owners Assistance Programs ... 3) did not provide any information about its compliance with [HAMP or the National Mortgage Settlement], 4) stated it was providing copies of the acknowledgements for the prior requests but did not actually attach them, and 5) declined to provide any information about the availability of loss mitigation programs, other than to state that it was reviewing the Plaintiffs for a modification.” Id. at ¶ 44.

D. Single Point of Contact

The Tanasis allege that, in a letter that they received on November 11, 2014, Citi-Mortgage identified a single point of contact with whom the Tanasis could communicate about their mortgage. Compl. ¶ 120. On November 23, 2014, CitiMortgage allegedly sent a letter changing the point of contact to “Na Na, with telephone number (999) 999-9999, ext. 0000000’" and email N/A.” Id. at ¶ 121. On February 17, 2016, CitiMortgage allegedly identified a new single point of contact, Claudia Martinez, and provided her phone number, but not an extension for her direct line. Id. at ¶ 122. When Mr. Tanasi called Ms. Martinez’s phone number, he was able to reach an employee named “Jose” and another named “Schiad,” who told him that the Tanasis would need to schedule a “call back appointment” with Ms. Martinez. Id. at ¶ 124. Ms. Martinez did not return the Tanasis’ call :at the scheduled callback time. Id. at ¶ 125 When the Tanasis called her office, they were allegedly informed that she would not be able to speak with them because her PC “was down.” Id. The Tanasis made another appointment for a “call back” with Ms. Martinez, but she did not call them at that time. Id. at ¶126. CitiMortgage then assigned a new single point of contact to the Tanasis on March 29, 2016. Id. The new single point of contact allegedly told the Tanasis that they “would not have any access to a [single point of contact] because of the pending appeal of the foreclosure judgment.” Id.

E. Defendant M & T Bank

The Tanasis allege that CitiMortgage was the mortgage servicing agent for Hudson City Savings Bank, M & T’s predecessor, and that CitiMortgage was under Hudson’s “direct supervision, employ, and control when it committed the wrongful and negligent acts described in the Complaint.” Compl. at ¶¶ 5, 46. The Tanasis also allege that “CitiMortgage’s servicing of the Mortgage is governed by a Master Mortgage Loan Purchasing and Servicing Agreement between CitiMortgage and Hudson,” under which CitiMortgage had the authority to “waive, modify or vary any term of any Mortgage Loan or consent to the postponement of compliance with any [term],” but could not “permit any modification that could change the Mortgage Interest Rate, defer or forgive they payment of any principal or interest, change the outstanding principal amount, [or] extend the maturity date.” Id. at ¶ 58. CitiMort-gage was also allegedly permitted to “take such action as it shall deem to be in the best interest of [Hudson].” Id. at ¶ 59. The Tanasis also allege that Hudson “held itself out to the public as offering mortgage modifications,” id. at ¶54, and indicated that it had a “Loan Modification Policy” in 10-K filings with the Securities and Exchange Commission. Id. at ¶¶ 56-57.

F. The Current Proceedings

On May 16, 2016, the Tanasis filed a Complaint against both Defendants, alleging violations of RE SPA, CUTPA, and common law negligence. Both Defendants moved to dismiss on July 29, 2016. On August 19, 2016, the Tanasis filed their First Amended Complaint, alleging the same three causes of action. Both Defendants moved to dismiss on September 16, 2016. See CitiMortgage’s Mot., ECF No. 26-1; M & T’s Mot., ECF No. 25-1. After oral argument on this motion in November, the parties submitted supplemental briefs to the Court concerning the availability of damages for emotional distress under CUTPA. See ECF Nos. 34-85.

In their First Amended Complaint, the Tanasis assert three causes of action, all of which Defendants seek to dismiss. The Tanasis first claim that CitiMortgage violated RE SPA and Regulation X by failing to provide acknowledgement notices in response to loss mitigation applications and for improperly responding to the applications when it did reply, and by failing to respond to the Tanasis’ various requests for information and notices of error. See Compl. ¶¶ 66-95. The Tanasis also allege that CitiMortgage “engaged in a pattern and practice of noncompliance with RES-PA and Regulation X.” Id. at ¶ 96.

In the second cause of action, the Tana-sis claim that CitiMortgage negligently and consistently failed to provide accurate information about the loss mitigation options available to the Tanasis, failed to provide an accessible single point of contract, and misrepresented loan modification options to the Tanasis “through a combination of duplicative, exhaustive, and ever-changing requests.” Compl. ¶¶ 98-136. These actions, the Tanasis allege, violated a duty that CitiMortgage owed to them under Regulation X as well as the National Mortgage Settlement, a consent decree between CitiMortgage, the federal government, and 49 states’ attorneys general, Id. at ¶ 99. In the National Mortgage Settlement, CitiMortgage allegedly agreed to engage in loss mitigation programs and disclose accurate information to borrowers. Id. at ¶¶ 100-108. The Tanasis’ Complaint also lays out the elements of a negligent infliction of emotional distress claim. Id. at ¶¶ 137-38. In them motions to dismiss, Defendants seek to dismiss this claim as well. See CitiMortgage’s Mot., 25.

In their third cause of action, the Ta-nasis allege that Defendants violated the Connecticut Unfair Trade Practices Act (“CUTPA”) by “a) soliciting the Tanasis to apply for a loan modification for which they were not eligible; b) repeatedly requesting duplicative, unnecessary, or updates to documentation during the application process without reasonable justification or excuse; c) making material misrepresentations or omissions likely to mislead a consumer acting reasonably under the circumstances, including misrepresenting to the Tanasis their eligibility, continued evaluation, and expectancy of receiving a modification of their loan; d) failing to apply existing loss mitigation policies in a uniform and fair fashion to all consumers; and e) improperly charging the Tanasis fees, interest, and other charges to which Citi-Mortgage is not entitled.” Compl., ¶ 149.

The Tanasis contend that Hudson, the predecessor of M & T, retained CitiMort-gage to act as its mortgage servicing agent, directly supervised CitiMortgage’s negligent servicing of the mortgage, Compl. ¶¶ 46-51, and is “vicariously liable” for CitiMortgage’s violations. Id. at ¶ 145.

As a result of the alleged violations, the Tanasis claim to have suffered losses relating to the “stripping [of] the Property of equity” (Compl. ¶ 61), the unnecessary maintenance of the Property due to delayed foreclosure (id. at ¶ 62), the expenditure of “postage, copying and fees” when submitting loss mitigation applications and requests for information (id. at ¶ 63), the creation of a public record of foreclosure (id. at ¶ 64), and “emotional trauma” (id. at ¶65). The Tanasis also claim that Citi-Mortgage is liable for statutory damages under RESPA of up to $2,000 for its pattern or practice of RESPA violations (id. at ¶ 97).

III. Standard of Review

Defendants move to dismiss under Federal Rule 12(b)(1), arguing that this Court lacks subject matter jurisdiction, and under Rule 12(b)(6), arguing that the Tanasis fail to state a claim. Dismissal under 12(b)(1) is appropriate when the Court lacks the statutory or constitutional power to adjudicate the claim. Fed. R. Civ. P. 12(b)(1); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). On a Rule 12(b)(1) motion to dismiss, the party asserting subject matter jurisdiction bears the burden of proving subject matter jurisdiction by a preponderance of the evidence and the “Court may consider evidence outside the pleadings.” P. v. Greenwich Bd. of Educ., 929 F.Supp.2d 40, 45-46 (D. Conn. 2013) (citing Makarova, 201 F.3d at 113) (internal citations ommitted). Otherwise, the standards for dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) are “identical.” Id.; see also Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction. ... But ‘[wjhere jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.’ ”) (citing APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003)).

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must state a claim for relief that is plausible on its face. Fed. R. Civ. P. 12(b)(6); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although “detailed factual allegations” are not required, a complaint must offer more than “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action” or “naked assertion[sj” devoid of “further factual enhancement.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In determining whether Plaintiffs, have met. this standard, thé Court must accept the allegations in the complaint as true and draw all reasonable inferences in the light most favorable to the non-moving party. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007).

IV. Discussion .

- Defendants move to dismiss the Tanasis’ Complaint in its entirety. Defendants, argue that this Court lacks jurisdiction over . the Tanasis’ claims, requiring dismissal urn der Rule 12(b)(1). In the alternative, Defendants .argue- that the Tanasis’ claims should be dismissed for failure to state a claim under Rule 12(b)(6).

A. Motion to Dismiss for Lack of Jurisdiction under Rule 12(b)(1)

Defendants assert two arguments, in support , of their motion to dismiss under Rule 12(b)(1). First, Defendants argue that the Tanasis’ claims are prohibited by the Rooker-Feldman doctrine. Second, Defendants argue that the Tanasis’ claims are precluded by principles of res judicata. The Court examines each of these arguments in turn.

1. The Rooker-Feldman Doctrine

CitiMortgage first argues that the Court lacks jurisdiction to review the Tanasis’ claims under the Rooker-Feldman doctrine.- The Court disagrees. The doctrine does not prevent jurisdiction over the alleged violations, of RESPA, nor does it prevent jurisdiction over the negligence and CÚTPA claims that are based on the same alleged misconduct.

The Rooker-Feldman doctrine provides that federal district courts do hot have jurisdiction to review final decisions of state courts or reverse or modify state court judgments. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Four requirements must be met for the doctrine to apply: “(1) the federal court plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by that state court judgment; (3) the plaintiff must invite1 the district court to review and reject the judgment; and (4) the state court judgment must have been rendered before the district court proceeding commenced.” Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005).

Courts in the Second Circuit apply Rooker-Feldman to foreclosure actions. See Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014) (applying Rooker-Feldman to claims concerning fraud in the foreclosure process); Gonzalez v. Ocwen Home Loan Servicing, 74 F.Supp.3d 504, 514 (D. Conn. 2015) reconsideration denied, No. 3:14-CV-53 (CSH), 2015 WL 2124365 (D. Conn. May 6, 2015), and aff'd sub nom. Gonzalez v. Deutsche Bank Nat. Trust Co., 632 Fed.Appx. 32 (2d Cir. 2016) (“In the particular context of state court judgments of foreclosure, courts in this circuit have consistently held that any attack on a judgment of foreclosure is clearly barred by the Rook-er-Feldman doctrine”) (citation omitted) (collecting cases); Beckford v. Citibank N.A., No. 00-CV-205 (DLC), 2000 WL 1585684, at *4 (S.D.N.Y. Oct. 24, 2000) (Rooker-Feldman doctrine prevented jurisdiction over the plaintiffs RESPA claim).

The Court, however, must engage in a “case-by-case determination of the applicability of the Rooker-Feldman doctrine,” even in a case concerning a foreclosure. See McCann v. Rushmore Loan Mgmt. Servs., LLC, No. 15-CV-6502, 2017 WL 1048076, at *4 (E.D.N.Y. Mar. 16, 2017) (noting that “federal courts are not automatically barred from determining-claims arising under RE SPA merely because the state court has entered an order regarding the mortgage and property at issue,” and collecting cases where courts did not apply the doctrine to RESPA claims).

The Tanasis lost in the Foreclosure Action, which was rendered before they filed their Complaint. See Notice of Judgment of Strict Foreclosure (entered March 7, 2016), Foreclosure Docket, 168.00; Compl. (filed May 16, 2016), EOF No. 1. The Rooker-Feldman doctrine applies, therefore, if Hoblock’s two “substantive” requirements, Hoblock, 422 F.3d at 85, are met: If the Tanasis “complain of injuries caused by” the Foreclosure Action, Hob-lock’s second requirement, and “invite the [CJourt to review and reject the judgment[,]” Hoblock’s third requirement. Id. at 86-87.

a. The Tanasis’ Claims

To assess the Tanasis claims under the two remaining Rooker-Feldman requirements, .the Court must review the claims themselves. The Tanasis raise claims under RESPA, CUTPA, and- of common law negligence. These claims do. not satisfy either of Hoblock’s substantive requirements, making the Rooker-Feldman doctrine inapplicable.

Congress enacted RESPA “to insure that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices that have developed in some areas of the country.” 12 U.S.C. § 2601(a). In 2010, it amended the Act, creating the Consumer Financial Protection Bureau (the “CFPB”), which was tasked with.prescribing rules and regulations, as well as interpretations, “as may be necessary to achieve” RESPA’s purpose. See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub.L. 111-203, § 2617(a), 124 Stat. 1376, 2184 (2010). In 2013, the CFPB promulgated Regulation X, RES-PA’s implementing regulations. See 12 C.F.R. §§ 1024.1-1024.41.

RESPA is a “consumer protection statute.” Roth v. CitiMortgage Inc., 756 F.3d 178, 181 (2d Cir. 2014) (per curiam) (citations omitted). Both section 2605 of RES-PA, which concerns the “servicing of mortgage loans and administration of escrow accounts,” and Regulation X obligate loan servicers to disclose pertinent information to borrowers, attempt to correct errors in servicing, and respond to relevant questions from borrowers. See 12 U.S.C. 2605, et. seq. Regulation X also sets forth procedures that a servicer must follow when presented with a borrower’s completed loss mitigation application. See 12 C.F.R. § 1024.41, et. seq.

Under RESPA, borrowers have a private right of action to enforce many of Regulation X’s procedural requirements, as well as the statute itself. The remedies available are set forth in Section 6(f) of RE SPA, which provides for the recovery of monetary damages in the amount of “(A) any actual damages to the borrower as a result of the failure; and (B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $2,000.” 12 U.S.C. § 2605(f). The Tanasis claim damages under both subsections relating to CitiMortgage’s alleged failure to respond to their communications and improper processing of their loss mitigation applications.

. .The Tanasis also claim. that CitiMort-gage was negligent in its handling and solicitation of mortgage modification requests and therefore raise a common law negligence claim. They propose a duty of care established by the mortgage, RESPA, Regulation X, and a consent decree that allegedly binds CitiMortgage to follow certain procedures when processing mortgage modification requests.

CUTPA is also a consumer protection statute. Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 106 (2d Cir. 1997) (citing Witham v. ITT Hartford, No. CV 960132891, 1997 WL 325443, at *1 (Conn. Super. Ct. June 4, 1997)) (“purpose of CUTPA is to protect consumers from unfair trade practices”). “CUTPA provides a statutory cause of action for any person who has suffered an ascertainable loss of money or property as a result of an unfair trade practice.” Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 606 n. 6, 894 A.2d 335, 344 n. 6 (2006). In their third cause of action, the Tanasis claim that CitiMortgage violated CUTPA by misleading consumers about its loss mitigation policies, misleading consumers concerning the availability of loss mitigation policies, and “improperly charging Plaintiffs fees, interest, and other charges to which it [wa]s not entitled.” Compl, ¶ 149(e).

b. The Tanasis do not Invite Review and Rejection of the Foreclosure Action

By asserting these three causes of action, the Tanasis do not invite this Court’s review and rejection of the Foreclosure Action and therefore do not meet Hoblock’s third requirement. Rooker-Feldman precludes a district court from entertaining a suit that “would require the federal court to review [a state’s] proceedings and determine that the foreclosure judgment was issued in error.” Vossbrinck, 773 F.3d at 427. In Vossbrinck, the plaintiff claimed that the defendant bank, which had acquired a judgment of strict foreclosure against him in state court, fraudulently represented its standing to foreclose. Id. at 426. The court concluded that this would “require the federal court to review the state proceedings and determine that the foreclosure judgment was issued in error[,]” id. at 427, so that Hoblock’s second requirement had been met. Id. (“[Voss-brink] is asking the federal court to determine whether the state judgment was wrongfully issued. ... This would require the federal court to review the state proceedings and determine that the foreclosure judgment was issued in error.”).

Under Vossbrinck, the Court lacks jurisdiction over a plaintiffs allegation that a foreclosure was improperly obtained or that it was entered in error. Courts have dismissed RESPA claims that challenge the foreclosure process itself. See Gordon v. Ocwen Loan Servicing, No. 3:15-CV-507(RNC), 2016 WL 1305108, at *1 (D. Conn. Mar. 31, 2016) (when plaintiff claimed “wrongful foreclosure” alongside RESPA violations and sought a temporary restraining order against the foreclosing bank, it was “evident [that] the purpose of this action is to undo the foreclosure”); Saunders v. Rockville Bank, No. 3:13-CV-01612-VLB, 2014 U.S. Dist. LEXIS 184582, at *16-17 (D. Conn. Sep. 10, 2014) (“[T]he relief sought by Plaintiff ... would require this court to set aside the state court foreclosure judgment.”); Dunn v. Deutsche Bank Nat. Trust, No. 5:15-CV-00809 DNH, 2015 WL 5638232, at *5 (N.D.N.Y. July 10, 2015), report and recommendation adopted, No. 5:15-CV-0809 DNH/TWD, 2015 WL 5650182 (N.D.N.Y. Sept. 24, 2015) (while “framed as violations of TILA and RESPA requirements, [plaintiffs] claims are inextricably intertwined with Plaintiffs claim that he was injured by the state court foreclosure judgment,” because plaintiff sought injunction against foreclosure and argued that mortgage was “utterly void”); but see McCann, 2017 WL 1048076 at *4 (concluding that Rooker-Feldman did not bar the plaintiffs Complaint, because she “pointedly avoids seeking an order overturning the state court order regarding the foreclosure and sale, and instead seeks damages only as a result of Defendant’s failure to comply with its [loss mitigation] obligations under RES-PA.”); see also He v. Ocwen Loan Servicing, LLC, 15-CV-4575, 2016 WL 3892405, at *2 (E.D.N.Y. July 14, 2016) (denying motion to dismiss RESPA claim concerning loss mitigation, without discussion of Rooker-Feldman, despite state court’s foreclosure order); Naylor v. Wells Fargo Home Mortg., Inc., No. 3:15-CV-116-RJC, 2016 WL 55292, at *5 (W.D.N.C. Jan. 5, 2016) (claims under RESPA were “independent from and not inextricably intertwined” with foreclosure judgment because they did “not seek to relitigate the foreclosure proceedings but rather [sought] civil damages for Defendants’ alleged failure to comply with the federal statutes at the time of the origination of the underlying Note.”); McDonald v. J.P. Morgan Chase Bank, N.A., No. 12-CV-02749-MSK, 2014 WL 334813, at *5 (D. Colo. Jan. 30, 2014) (declining to dismiss plaintiffs RESPA claims concerning the defendant’s responses to requests for information because they did not “turn on whether or not [the] foreclosure was proper.”).

If a plaintiff “presents some independent claim,” however, “albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party[,] then there is jurisdiction.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Thus, when a plaintiff states claims that are “independent from the state court judgment of foreclosure,” McCann, 2017 WL 1048076 at *4, Rooker-Feldman does not deprive the court of jurisdiction. This is true “even if the [claims] involve the identical subject matter and parties as previous state-court suits.” Hoblock, 422 F.3d at 86.

The Tanasis allege that Defendants improperly processed their loan modification applications, failed to respond to their requests for information, and “engaged in a pattern or practice of non-compliance with RESPA and Regulation X.” Compl. ¶96. In all three causes of action, the Tanasis “pointedly avoid” arguing that their foreclosure was wrongly decided or seeking injunctive relief against the foreclosure. See McCann, 2017 WL 1048076 at *4. They argue, rather, that CitiMortgage committed independent violations of RES-PA, CUTPA, Regulation X, and all of which grant the Tanasis independent rights as consumers and borrowers.

At this stage of the proceedings, the Court concludes the Tanasis’ claims are sufficiently “independent” from the Foreclosure Action and do not invite the Court’s “review and rejection of that judgment.” Hoblock, 422 F.3d at 85; see also Zeller v. Ventures Tr., No. 15-cv-01077, 2016 WL 745373, at *21-22 (D. Colo. Feb. 1, 2016) (the plaintiffs claim for relief under RESPA and Regulation X was “independent” because it “alleges that [the defendant] failed to respond to a Qualified Written Request.... Nothing about Ms. Zeller’s RESPA claim pertains to the foreclosure proceedings or would require the court to engage in appellate-type |,eview of a state court judgment.”).

c. The Tanasis do not Compjiain of an Injury Caused by a State Court Judgment

The Tanasis’ case presents a closer call when evaluated against Hob-lock ⅛ second requirement, which, as the Second Circuit has explained, is the “core requirement” of the Rooker-Feldman doctrine. Hoblock, 422 F.3d at 87. Under this second requirement, “Rooker-Feldman bars a federal claim, whether or not raised in state court, asserting an injury based on a state judgment and seeking review and reversal of that judgment.” Id. (noting that “such a claim is ‘inextricably intertwined’ with the state judgment,” but cautioning that “the phrase ‘inextricably intertwined’ has no independent content.”). The court in Hoblock explained that:

[A] federal suit complains of injury from a state-court judgment, even if it appears to complain only of a third party’s actions, when the third party’s actions are produced by a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it. Where a state-court judgment causes the challenged third-party action, any challenge to that third-party action is necessarily the kind of challenge to the state judgment that only the Supreme Court can hear.

Id. at 88; see also McKithen v. Brown, 481 F.3d 89, 97-98 (2d Cir. 2007) (“What Exxon and Hoblock do make clear is that the applicability of the Rooker-Feldman doctrine turns not on the similarity between a party’s state-court and federal-court claims!,] but rather on the causal relationship between the state-court judgment and the injury of which the party complains in federal court.”).

The Second Circuit has observed that a plaintiff “is not complaining of an injury ‘caused by1 a state-court judgment when the exact injury of which the party complains in federal court existed prior in time to the state-court proceedings, and so could not have been ‘caused by’ those proceedings.” McKithen, 481 F.3d at 98 (adding that “[o]bviously, an injury that arises at the same time or even after a state-court judgment might also arise independently of — that is, might arise without being caused by — that state-court judgment.”); see also Worthy-Pugh v. Deustche Bank Nat’l Trust Co., No. 3:14-CV-1620 (AWT), 2016 WL 2944535, at *5 (D. Conn. Jan. 29, 2016), aff'd sub nom. Worthy-Pugh v. Deutsche Bank Nat’l Trust Co., 664 Fed.Appx. 20 (2d Cir. 2016) (plaintiffs claim for “theft” of payments made under modification agreement “was not caused by the state court judgment” and in fact occurred prior to the foreclosure judgment, making Rooker-Feldman inapplicable).

The Tanasis complain of injuries allegedly caused by CitiMortgage’s improper servicing of their mortgage. While these errors may have shaped the eventual Foreclosure Action, they were not “produced by [the] state-court judgment.” Hoblock, 422 F.3d at 88. At most, they were “simply ratified, acquiesced in, or left unpunished by it,” id,, in that the state court allowed CitiMortgage to foreclose despite its alleged violations. Furthermore, the Ta-nasis do not request “title to and tender of [their] property,” Vossbrinck, 773 F.3d at 427, but rather seek damages authorized by statute and allegedly produced by Citi-Mortgage’s alleged deceptions, miscommu-nications, and delay. See Sanchez v. Onewest Bank, FSB, No. 11 CV 6820, 2013 WL 139870, at *3 (N.D. Ill. Jan. 10, 2013) (claims under RESPA were independent from foreclosure judgment because plaintiffs were “not seeking to relitigate those foreclosure proceedings but rather are seeking damages for defendants alleged failure to properly respond to their March 31, 2011 letter under RESPA”); Hornbuckle v. Mortg. Elec. Registration Sys., Inc., No. 10-14306, 2011 WL 5509214, at *6 (E.D. Mich. Nov. 10, 2011) (court had jurisdiction over RESPA elaim concerning defendant’s response to the plaintiffs QWR, “because the source of the alleged injury is not the state court’s decision” and is not “predicated upon the validity of the foreclosure”).

The Court notes that the Complaint could be read to describe injuries produced by the Foreclosure Action. For example, the Tanasis allege that CitiMortgage’s RESPA violation imposed “costs related to stripping the Property of equity,” “unnecessary costs of maintaining the Property due to delayed foreclosure,” and a “public record of foreclosure.” See Compl. ¶¶ 61-65. The Tanasis also seek damages relating to their “emotional trauma,” and cite a study that describes the emotional consequences of the foreclosure process. Id. at ¶¶ 139-40. At oral argument, the Tanasis maintained that these allegations were meant to • approximate the damages that flow from the delay in foreclosure caused by CitiMortgage’s alleged violations and insisted that they were not seeking damages relating to the foreclosure itself. Given that the Court “must ... draw all reasonable inferences in favor of the party asserting jurisdiction” when reviewing a motion to dismiss under Rule 12(b)(1), it accepts the Tanasis’ representation that they seek monetary damages totally unrelated to the Foreclosure Action, and concludes that their Complaint should not be dismissed under the Rooker-Feldman doctrine. See Tandon, 752 F.3d at 243 (“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction, [although] the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists”).

2. Res Judicata

Defendants also argue that dismissal is warranted under the doctrine of res judi-cata, because “all of Plaintiffs claims in the instant matter were raised, or could have been raised, in the Foreclosure Action.” CitiMortgage’s Mot., 11. The Tanasis respond that their claims cannot be precluded because they were not required to bring any of them in state court and were in fact barred from bringing some of them. Opp, Mem., 11. The Court agrees that res judi-cata bars most of the Tanasis claims.

The doctrine of res judicata provides that “a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them.” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (Conn. 1997); see also Vandever v. Emmanuel, 606 F.Supp.2d 253, 254 (D. Conn. 2009) {“Res judicata, or claim preclusion, means that a party may not split causes of action that could be brought and resolved together”) (internal citations omitted).

State court judgments have res judicata effect in federal courts. Migra v. Warren City School Dist., 465 U.S. 75, 85, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). In evaluating the res judicata effects of a previous state court judgment, federal courts apply that state’s rule of law as to res judicata. Id. “It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Id. at 81, 104 S.Ct. 892 (internal quotations and citations omitted); see also AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir. 2003) (“Where there is a final state court judgment, a federal court looks to that state’s rules of res judicata to determine the preclusive effect of that judgment.”).

The Tanasis correctly note that Connecticut is a permissive counterclaim jurisdiction. Connecticut courts are mixed as to whether a plaintiff is precluded by the res judicata doctrine from bringing a claim that she could have brought, but was not required to bring, as a counterclaim in a previous action. The majority of courts, though, apply res judicata to permissive counterclaims, keeping in mind “the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” Weiss v. Weiss, 297 Conn. 446, 459-60, 998 A.2d 766 (Conn. 2010); see generally Dunham v. Dunham, 221 Conn. 384, 391-92, 604 A.2d 347 (1992) (res judicata barred prosecution of claims that could have been brought as counterclaims, because “ ‘[t]he doctrine ... provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made.’ ”) (citing Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983)); but see Trimmel v. Gen. Elec. Credit Corp., 555 F.Supp. 264, 267 (D. Conn. 1983) (“Under Connecticut law, Trimmél’s Truth-in-Lending claim is a permissive rather than compulsory counterclaim to the state foreclosure action. With state law in this posture, federal courts would not bar Trimmers Truth-in-Lending claim because she failed to assert it as a counterclaim in the state suit.”) (internal citations omitted); State v. Bacon Const. Co., 160 Conn.App. 75, 88, 124 A.3d 941 (2015) (“In Connecticut, the fact that a defendant in a prior action did not assert a related cause of action in that prior action does not foreclose the defendant from asserting those claims in a new action filed in the future”); Hansted v. Safeco Ins. Co. of Am., 19 Conn.App. 515, 521, 562 A.2d 1148 (1989) (“Because Connecticut does not have a compulsory counterclaim rule ... Hansted cannot be precluded from bringing the present claim on the ground that he failed to bring a counterclaim in [a prior action]”); Battista v. DeNegris, No. CV93-0525774, 1994 WL 530165, at *1 (Conn. Super. Ct. Sept. 16, 1994) (noting that res judicata is aimed at preventing duplicative suits by plaintiffs, but cannot bar previous defendants from bringing a potential counterclaim in a separate action, because “we live for better or worse in a so-called permissive counterclaim state.”).

Rather than concluding that res judicata can never apply to permissive counterclaims, most Connecticut courts use a -transactional test for determining whether res judicata should apply. See Weiss, 297 Conn. at 460-61, 998 A.2d 766; Chien v. Skystar Bio Pharmaceutical Co., 623 F.Supp.2d 255, 260 (D. Conn. 2009) (res judicata “bars not only those claims or legal, theories that were asserted in the prior action, but also those legal claims or theories that could have been asserted, regardless whether they were in fact raised by the parties, so long as they arise from the same transaction that formed the basis of the prior action.”) (quoting Balderman v. U.S. Veterans Admin., 870 F.2d 57, 62 (2d Cir. 1989)); Legassey v. Shulansky, 28 Conn.App. 653, 656, 611 A.2d 930 (Conn. App. Ct. 1992) (same). “The transactional test measures the preclusive effect of a prior judgment, which includes any claims relating to the cause of action that were actually made or might have been made.” Weiss, 297 Conn. at 461, 998 A.2d 766. “What factual grouping constitutes a ‘transaction’ [is] to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” Id. According to this transactional test, several of the Tanasis’ claims are precluded and therefore dismissed under the doctrine of res judicata.

a. The Transaction Test and Foreclosure Actions

Connecticut courts also use the transaction. test to evaluate the viability of counterclaims in foreclosure actions, thereby providing a guide to the test’s application in the foreclosure context. CitiMortgage, Inc. v. Rey, 150 Conn.App. 595, 605, 92 A.3d 278 (2014) (In foreclosure actions, a “counterclaim must simply have a sufficient relationship to the making, validity or enforcement of the subject note or mortgage in order to meet the transaction test.”). When applying the transaction test in this context, courts “have required only that the subject of the counterclaims have a sufficient connection to the making, validity or enforcement of the note and mortgage.” Id.

Claims questioning the validity of the plaintiffs right to seek foreclosure are sufficiently connected to the foreclosure action. In Rey, CitiMortgage sought to foreclose on a residential property before the Connecticut Superior Court. Rey, 150 Conn.App. at 597, 92 A.3d 278. The defendant, Rey, asked to participate in the court’s foreclosure mediation process, and the court granted her request and stayed the foreclosure proceedings. Id. at 598, 92 A.3d 278. During mediation, the parties entered into a forbearance agreement. Id. When CitiMortgage later instituted a foreclosure action, the defendant, by way of counterclaim, alleged that the foreclosure action violated the parties’ forbearance agreement. Id. at 599, 92 A.3d 278. The court decided that this counterclaim arose from the same transaction as the foreclosure action. Id. at 608, 92 A.3d 278. The court reasoned that the parties had entered into the forbearance agreement during litigation and in regard to the subject of the note and mortgage. Id. Furthermore, the forbearance agreement “directly implicated] the plaintiffs right, in equity, to seek the remedy of a judgment by foreclosure.” Id.; see also Morgera v. Chiappardi, 74 Conn.App. 442, 458-59, 813 A.2d 89 (2003) (holding that a counterclaim regarding false representations about the plaintiffs other properties “had arisen from the same transaction as the subject mortgage and note because there was an adequate nexus between the transactions [because plaintiffs] conduct in inducing the defendant’s making of the note and mortgage on the property [raised] serious questions about their validity and enforcement”).

Claims relating to a broad range of conduct, or to an extrinsic agreement between the parties, rather than “narrowly bearing on the mortgage note itself or its enforcement,” do not pass the transaction test. JP Morgan Chase Bank v. Rodrigues, 109 Conn.App. 125, 134-35, 952 A.2d 56 (2008). In Rodrigues, the court found that the defendants’ counterclaim for “emotional distress as a result of [the plaintiffs] threats of foreclosure and the [ ] alleged requirement that the defendants execute another agreement” was not sufficiently related to the foreclosure action to be brought as a counterclaim. Id. Rather, the court held, the counterclaim “pertained] to a range of the plaintiffs conduct ... rather than narrowly bearing on the mortgage note itself or its enforcement.” Id. at 133, 952 A.2d 56 (noting “[t]he disparity between the subject matter of the plaintiffs’ complaint and that of the defendants’ counterclaim.”). The court also noted that the counterclaim involved “documents other than the mortgage note.” Id. at 133, 952 A.2d 56; see also Rey, 92 A.3d at 286 (emphasizing the difference between the instant case and Rod-rigues, where “the defendant had claimed damages resulting from the plaintiffs failure to adhere to an extrinsic agreement”).

Similarly, in U.S. Bank National Assn. v. Sorrentino, which the Tanasis cite, the borrowers’ allegations regarding the bank’s improper conduct during a foreclosure mediation program could not have been properly joined with their complaint. 158 Conn.App. 84, 95, 118 A.3d 607 (2015), cert. denied, 319 Conn. 951, 125 A.3d 530 (2015). The Sorrentino defendants claimed that the plaintiff bank was negligent during foreclosure mediation proceedings and had deliberately failed to provide certain documents. Id. at 85, 118 A.3d 607. The court concluded that the plaintiffs could not bring counterclaims concerning mediation proceedings in the foreclosure action. Id. at 97, 118 A.3d 607. The court held that, because the mediation program did not begin until after the bank executed the note and mortgage and commenced the foreclosure action, claims concerning the mediation program did not “reasonably relate” to “the subject matter of the underlying complaint,” namely “the execution of the note and mortgage, and the subsequent default.” Id. at 96-97, 118 A.3d 607 (“That program did not begin until after the execution of the note and mortgage, and after the foreclosure action was commenced, and, thus, does not reasonably relate to the making, validity or enforcement of the note or mortgage”).

Under the transaction test, RES-PA claims are proper counterclaims to foreclosure actions when “the ' alleged RESPA violations arise out of the same transaction that is the subject of the foreclosure action, that is, the execution of the note and mortgage and the subsequent default.” Webster Bank v. Linsley, No. CV970260406S, 2001 WL 1042581, at *9 (Conn. Super. Ct. Aug. 14, 2001). In Webster Bank, the state superior court confirmed that RESPA claims could be counterclaims, but not special defenses, to foreclosure actions. Id. (“The court also disagrees with the plaintiffs argument that because RESPA violations cannot affect the validity or enforceability of the note and, mortgage, that is, serve as a special defense to foreclosure, they cannot, ipso facto, form the basis of a counterclaim in mortgage foreclosure”). ,

“Even though the alleged RESPA violations cannot affect the validity or enforceability of the note and mortgage,” .the court held “they may relate to the making of the note and mortgage or the default” and qualify as counterclaims. Webster Bank, 2001 WL 1042581, at *9; see also Deutsche Bank Nat’l Tr. Co. v. Ofili, No. CV146022822, 2015 WL 4726836 at *18, 2015 Conn. Super. LEXIS 1760 at *53 (Super. Ct. July 2, 2015) (“Connecticut trial courts have permitted counterclaims based upon RE SPA in cases involving foreclosure,”); EMC Mortg. Corp. v. Shamber, No. CV075001252S, 2009 WL 4282900, at *13 (Conn. Super. Ct. Nov. 12, 2009) (agreeing that RESPA claims, and negligence claims arising from duties created by RESPA, could be counterclaims in foreclosure actions, but striking the RES-PA counterclaim because “the failure to send a notice of the transfer of the servicing of the loan and to credit payments made under a forbearance agreement do not arise from the execution of the note and mortgage and the subsequent default.”); Bankers Tr. Co. v. Dexter, No. CV351023S, 1998 WL 892721 at *3, 1998 Conn. Super. LEXIS 3544 at *6 (Super. Ct. Dec. 14, 1998) (denying motion to strike RESPA counterclaims in foreclosure action when “violations occurred in connection with the defendants’ loan application and the overall loan transaction”); Bank of Am., N.A. v. Derisme, No. CV096003691, 2014 WL 4413438 at *11, 2014 Conn. Super. LEXIS 1820 at *31 (Super. Ct. July 22, 2014) (denying motion to strike RES-PA counterclaims involving the plaintiffs response to a qualified written request).

Similarly, defendants can assert CUTPA violations as counterclaims if they “relate to the making, validity or enforcement” of the underlying mortgage. In Rod-rigues, the court held that the defendant’s CUTPA counterclaim did not “arise out of the same transaction as the complaint.” Rodrigues, 109 Conn.App. at 133, 952 A.2d 56 (citing New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 9-11, 78