United States District Court, D. Massachusetts
TIMOTHY CICHOCKI and Y. DOLLY HWANG, Plaintiffs,
BANK OF AMERICA, VICKY R. OLESKEY, ESTATE OF WALTER JUNG, ELIZABETH C. McCAAN, ESTATE OF MARK KEISER, ROBERT D. RUSSO, DAVID FRYE, RUSSO AND SCOLNICK and 31 PINCKNEY STREET CONDOMINIUM TRUST AND ASSOCIATION, Defendants.
MEMORANDUM & ORDER
NATHANIEL M. GORTON United States District Judge.
case arises from allegations that a mortgagee bank and
several representatives of a condominium association
fraudulently imposed special assessment fees against
before the Court are motions to dismiss by three sets of
defendants and a motion for sanctions by one set of
defendants. For the reasons that follow, the motions to
dismiss will be allowed and the motion for sanctions will be
Background and procedural history
Timothy Cichocki (“Cichocki”) and Y. Dolly Hwang
“plaintiffs”) are a married couple who live at a
condominium unit which they purchased at 31 Pinckney Street
in Boston, Massachusetts. They appear in this case pro se.
Bank of America (“Bank of America”) is a banking
and financial services company which loaned plaintiffs $270,
000 secured by a 15-year mortgage. Plaintiffs refinanced and
executed a new 15-year mortgage in 2008. They allege that
Bank of America 1) misappropriated and transferred $6, 452 in
funds from their mortgage escrow account to the condominium
association, 2) increased the amount of their monthly
mortgage payments to cover the deduction of those funds and
3) attempted to foreclose on their property after they
31 Pinckney Street Condominium Trust & Association
(“the Association”) is the manager of the
condominium units at 31 Pinckney Street. Plaintiffs assert
that it submitted a series of “false claim[s] of
debt” to Bank of America for the purposes of extortion
Vicky Oleskey (“Oleskey”) is a member of the
Association who served for “almost three decades”
as its secretary and treasurer. She allegedly conspired with
the Association to lodge “false claims of debt”
Jung was a member of the Association and its treasurer until
2009. He died in 2011 and his estate (“Jung”) has
been named as a defendant in this action.
Elizabeth McCaan (“McCaan”) is the co-owner of
multiple condominium units at 31 Pinckney Street and the
current treasurer of the Association. Plaintiffs claim that
she worked with Oleskey and an attorney, on behalf of the
Association, to assess falsely claimed debts from
plaintiffs’ account with Bank of America.
Keiser was married to McCaan and co-owned condominium units
with her before his death in 2014. His estate
(“Keiser”) has also been named as a defendant.
Russo & Scolnick (“the law firm”) is the
Massachusetts law firm representing Oleskey, McCann and the
Association in Massachusetts Housing Court. Plaintiffs claim
that the law firm filed false claims against them in the
housing court and acted as a “collection agent”
for the Association, all for the purpose of extortion.
Robert Russo (“Attorney Russo”) is a partner at
the law firm who allegedly filed the false claims against
plaintiffs in the housing court.
David Frye (“Attorney Frye”), whom the complaint
purportedly misidentifies as “Davis Frye”, is an
attorney who allegedly assisted with the filing of the false
claims and made false representations in the housing court.
initiated this action in September, 2015 by filing a
complaint alleging various violations of federal law,
Massachusetts law, the Uniform Commercial Code and a Consent
Judgment of another federal district court.
firm and Attorneys Russo and Frye (collectively, “the
attorney defendants”) moved to dismiss the claims
against them in December, 2015. Oleskey, Jung, McCaan, Keiser
and the Association (collectively, “the condominium
defendants”) moved for dismissal of the claims against
them, and for sanctions against plaintiffs, in January, 2016.
Bank of America moved to dismiss the claims against it
Bank of America’s motion to dismiss
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). The court may consider documents incorporated by
reference, matters of public record and other matters subject
to judicial notice. Giragosian v. Ryan, 547 F.3d 59,
65 (1st Cir. 2008). In assessing the merits of the motion,
the court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in the
plaintiff's favor. Santiago v. Puerto Rico, 655
F.3d 61, 72 (1st Cir. 2011). Threadbare recitals of the legal
elements, supported by mere conclusory statements, do not
suffice to state a cause of action. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
the doctrine of res judicata, a final judgment on the merits
of a previously filed action precludes the parties from
re-litigating issues that were, or could have been, raised in
the prior action. Perez v. Volvo Car Corp., 247 F.3d
303, 311 (1st Cir. 2001). The doctrine applies if there is 1)
a final judgment on the merits in the earlier action, 2)
“sufficient identicality” between the causes of
action asserted in the earlier and later actions and 3)
“sufficient identicality” between the parties in
the two actions. Id. A dismissal of all claims in
the prior action for failure to state a claim constitutes a
final judgment on the merits for such purposes. AVX Corp.
v. Cabot Corp., 424 F.3d 28, 30-32 (1st Cir. 2005).
First Circuit Court of Appeals (“the First
Circuit”) adopts a broad “transactional”
approach to the term “cause of action” which it
embrac[ing] all rights of the plaintiff to remedies against
the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of
which the action arose.
United States v. Cunan, 156 F.3d 110, 114 (1st Cir.
1998) (internal quotation marks omitted).
review of the pleadings in the public record confirms that
res judicata prevents plaintiffs from asserting their claims