Ruben Martinez v. Capital One NA

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, KRAUSE and ROTH, Circuit Judges. Total Pages: 4.

Case: 16-2753

Document: 003112502701

Page: 1

Date Filed: 01/04/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2753
___________
RUBEN MARTINEZ,
Appellant
v.
CAPITAL ONE, N.A.
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-15-cv-00266)
District Judge: Honorable Jose L. Linares
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 3, 2016
Before: CHAGARES, KRAUSE and ROTH, Circuit Judges
(Opinion filed: January 4, 2017)
___________
OPINION*
___________
PER CURIAM
Pro se appellant Ruben Martinez appeals from an order of the United States
District Court for the District of New Jersey dismissing his Second Amended Complaint
under Federal Rule of Civil Procedure 12(b)(6). We will affirm.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 16-2753

Document: 003112502701

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Date Filed: 01/04/2017

In 2007, Martinez executed a mortgage agreement and accompanying promissory
note with GreenPoint Mortgage Funding (GMF), in connection with Martinez’s purchase
of a residential property in New Jersey. Martinez filed this action in 2015, apparently
after foreclosure proceedings were initiated on the property, claiming that GMF
“knowingly, liberally, [and] greedily . . . sold [him] a deceptive loan product.” The
gravamen of Martinez’s complaint is that Capital One – the alleged holder of the note1 –
caused his loan to be securitized,2 and subsequently sold, without first advising him. He
alleges breach of contract, fraud, and intentional infliction of emotional distress.
On March 1, 2016, the District Court granted Capital One’s motion to dismiss
Martinez’s Amended Complaint, but permitted him to re-plead. After Martinez filed a
Second Amended Complaint, which the Court found “rehashe[d] the exact same
allegations as the previously dismissed complaint,” the Court dismissed Martinez’s
Second Amended Complaint with prejudice and directed the clerk to close the case. This
timely appeal ensued.
We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s
dismissal under Rule 12(b)(6) using the same test applied by a district court – asking
whether the complaint contains “sufficient factual matter; accepted as true; to state a

1

Martinez merely “believes that [GMF] sold its interest in the Loan[,] [with] Defendant
[Capital One] serving as the Loan Service and not the Owner of the Loan.” Capital One
represented in its motion to dismiss that “GMF is the holder of the Note and Mortgage
and that the Note and Mortgage were never transferred” to Capital One. We need not
resolve this factual dispute because Martinez’s claims fail either way.
2
“Securitization is a process by which expected payment streams are pooled together and
restructured into securities, which are then sold to investors.” In re Oakwood Homes
Corp., 356 F. App'x 622, 624 (3d Cir. 2009)
2

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claim to relief that is plausible on this face.” Fantone v. Latini, 780 F.3d 184, 186-193
(3d Cir. 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). We agree with the
District Court that Martinez’s original Amended Complaint contains insufficient
allegations to survive Capital One’s motion to dismiss. And because the District Court
accurately found that the Second Amended Complaint merely re-asserted the allegations
contained in the original,3 it properly dismissed the Second Amended Complaint without
providing Martinez another opportunity to amend. See Jablonski v. Pan Am. World
Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (“Amendment of the complaint is futile
if the amendment will not cure the deficiency in the original complaint or if the amended
complaint cannot withstand a renewed motion to dismiss.”).
Martinez claims that Capital One breached the terms of the mortgage agreement
“by failing to notify [him] of the change in ownership of the Note and Mortgage,” and by
failing to “record the transfer of Plaintiff's Loan in the County records.” But as the
District Court observed, the mortgage agreement specifically authorizes the sale of the
note without notice to Martinez, and he fails to identify any contractual provision, or
statute, that requires the recordation of any such sales or transfers.4 Martinez’s fraud in
the concealment claim – in which he alleges that, had Capital One informed him that the
loan was securitized, he “would not have entered into the Loan and would have rescinded
3

As the Court observed, the only difference between the two complaints is that the
Second Amended Complaint contains three additional paragraphs in the “Introduction”
section, which primarily update the procedural history of the case.
4
In addition, as the District Court accurately noted, “[t]he fact that assignments of
mortgages may be recorded does not affect the validity of an assignment of a mortgage
which has not been recorded.” EMC Mortgage Corp. v. Chaudhri, 946 A.2d 578, 588
(N.J. Sup. Ct. App. Div. 2008).
3

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it from the time of origination” – fails for essentially the same reason. The mortgage
agreement unambiguously informs him of the possibility of securitization,5 and thus he
cannot credibly claim that Capital One misrepresented this possibility.
Lastly, the District Court properly dismissed Martinez’s claim for emotional
distress because he failed to allege conduct “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.” Taylor v. Metzger, 706 A.2d 685, 703
(N.J. 1998) (internal citations and quotations omitted). The factual allegation underlying
this claim – that Capital One “knowingly and recklessly misrepresented . . . that it was
entitled to exercise the power of sale provision [foreclosure] contained in the Mortgage”
– does not meet the applicable standard. Accordingly, we will affirm the order of the
District Court.6

5

The agreement provides that “the note or a partial interest in the note (together with this
Instrument and the other Loan Documents) may be sold one or more times without prior
Notice to the Borrower.”
6
In his pro se brief submitted to this Court, Martinez contends, for the first time in this
litigation, that he is entitled to quiet title to the mortgaged property. We decline to
address this claim because “[a]s a general rule we do not review issues raised for the first
time at the appellate level.” Gardiner v. Virgin Islands Water & Power Auth., 145 F.3d
635, 646–47 (3d Cir. 1998) (internal quotations omitted).
4