Church-El v. Bank of New York

Filing 78

OPINION - see Order filed same date for details.. Signed by Judge Noel L. Hillman on 12/15/15. (bkb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE

KHYON ERNEST CHURCH-EL,
Plaintiff,
v.
BANK OF NEW YORK, as Trustee
for the holders of
asset-backed certificate
series 2001-1F,

Civil No. 11-877
(NLH/KMW)
OPINION

Defendant.

APPEARANCES:
Khyon Ernest Church-El
1725 West 2nd Street
Wilmington, Delaware 19805
Plaintiff Pro Se
David A. Dorey, Esquire
Blank Rome LLP
1201 North Market Street
Suite 800
Wilmington, Delaware 19801-4226
Counsel for Defendant
HILLMAN, District Judge:
This matter comes before the Court by way of motion [Doc.
No. 62] of Defendant, Bank of New York, as Trustee for the
Holders of Asset-Backed Certificate Series 2001-1F (hereafter,
“BONY”), seeking to dismiss the complaint pursuant to Fed. R.
Civ. P. 12(b)(6) based upon Plaintiff’s failure to state a claim

upon which relief may be granted.

Plaintiff, Khyon Ernest

Church-El, opposes the motion [Doc. No. 72].1
Also before the Court is Plaintiff’s motion [Doc. No. 74]
to amend his complaint pursuant to Fed. R. Civ. P. 15(d).2
Defendant opposes this motion [Doc. No. 75].
The Court has considered the submissions of the parties and
decides this matter pursuant to Fed. R. Civ. P. 78.

For the

reasons expressed below, Defendant’s motion to dismiss will be
granted, and Plaintiff’s motion to amend will be denied.
I.

BACKGROUND
On September 28, 2011, Plaintiff filed a complaint against

Defendant BONY pursuant to the “Fair Credit Reporting Act
(FCRA), the Fair Debt Collection Practices Act (FDCPA), Title 12
of the Delaware Code, and the 1968 Charter Act (Fannie Mae and
Ginnie Mae).”

Compl. [Doc. No. 1].

Plaintiff was a borrower on

a foreclosed mortgage, the judgment of which was affirmed on
appeal on October 3, 2008 by the Delaware Supreme Court.

Id. ¶

10.

1

The Court notes that Plaintiff’s initial opposition [Doc. No.
66] to the present motion only addresses Defendant’s notice of
lack of opposition [Doc. No. 65] and does not address the
substantive argument in the present motion. Plaintiff
subsequently filed “Plaintiff’s Reply to Defendant’s Motion to
Dismiss” [Doc. No. 72].
2

Plaintiff refers to the motion as “Motion to Supplement
Complaint.” Plaintiff attached what appears to be a Proposed
Amended Complaint (“PAC”) [Doc. No. 74-1] with the motion.
2

Plaintiff did not timely serve the complaint, and the Court
granted Plaintiff multiple extensions of time to effect service
pursuant to Fed. R. Civ. P. 4(m).3

Before serving the complaint

on Defendant BONY, Plaintiff filed an untitled document [Doc.
No. 24], which the Clerk of the Court construed as a “Proposed
Amended Complaint.”

The document purported to add three new

defendants: Bank of America Corporation (hereafter, “Bank of
America”), EquiCredit Corporation (hereafter, “EquiCredit”) and
Select Portfolio Servicing, Inc. (hereafter, “Select”).

Shortly

thereafter, Plaintiff filed an “Amended Complaint,” also naming
Bank of America, EquiCredit and Select as defendants [Doc No.
31].

In a Memorandum Opinion dated December 31, 2013, the Court

found that the “Proposed Amended Complaint” and the “Amended
Complaint” were not properly filed and had no legal effect.
Dec. 31. 2013 Mem. Op. ¶ 14 [Doc. No. 45].
BONY, Bank of America, EquiCredit, and Select sought
dismissal of Plaintiff’s complaint for failure to effect service
[Doc. No. 50].

Plaintiff opposed the motion and also seemed to

move for summary judgment [Doc. No. 54].

3

In a Memorandum

The parties are aware of the extensive history concerning
Plaintiff’s efforts to serve Defendant in this matter, and the
Court will not recount the details concerning service here. The
service of process issue was discussed at length in the Court’s
March 21, 2013 Opinion [Doc. No. 22] and in the December 31,
2013 Memorandum Opinion [Doc. No. 45], and such discussions are
incorporated herein by reference.
3

Opinion dated February 19, 2015, the Court dismissed the motion
to the extent that it was filed by non-parties, Bank of America,
EquiCredit and Select.
61].

Feb. 19, 2015 Mem. Op. ¶ 9 [Doc. No.

The Court also denied the motion by the sole Defendant,

BONY, because the operative pleading in the matter was the
original complaint, which was properly served, and BONY’s motion
sought to dismiss allegations in the amended complaint, which
were stricken.

Id. ¶¶ 12, 14.

The Court further denied

Plaintiff’s motion for summary judgment.
II.

Id. ¶¶ 18, 20.

JURISDICTION
Plaintiff asserts claims pursuant to the Fair Credit

Reporting Act, 15 U.S.C. § 1681 et seq., and the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et seq.

The Court

exercises jurisdiction over Plaintiff's federal law claims under
FCRA and FDCPA pursuant to 28 U.S.C. § 1331.

See also 15 U.S.C.

§§ 1681p, 1692k(d) (allowing FCRA and FDCPA claims to “be
brought in any appropriate United States district court without
regard to the amount in controversy....”).

The Court exercises

supplemental jurisdiction over Plaintiff’s state law claims
under 28 U.S.C. § 1367.
III. STANDARD FOR MOTION TO DISMISS
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. Pro. 12(b)(6), a court must accept all
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well-pleaded allegations in the claim as true and view them in
the light most favorable to the claimant.

Evancho v. Fisher,

423 F.3d 347, 350 (3d Cir. 2005); MCI Telecommunications Corp.
v. Graphnet, Inc., 881 F. Supp. 126, 128 (D.N.J. 1995).

It is

well settled that a pleading is sufficient if it contains “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However,

“[a]lthough the Federal Rules of Civil Procedure do not require
a claimant to set forth an intricately detailed description of
the asserted basis for relief, they do require that the
pleadings give defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.”

Baldwin Cnty.

Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)
(quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claims.’”

Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8

(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974));
see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ ....”); Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (“Iqbal ... provides the final nail-in-thecoffin for the ‘no set of facts’ standard that applied to
5

federal complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
outlined a three-part analysis in reviewing a complaint under
Rule 12(b)(6).

First, the Court must take note of the elements

needed for plaintiff to state a claim.

Santiago v. Warminster

Tp., 629 F.3d 121, 130 (3d Cir. 2010).

Second, the factual and

legal elements of a claim should be separated; a district court
must accept all of the complaint’s well-pleaded facts as true,
but may disregard any legal conclusions.

Id.; Fowler, 578 F.3d

at 210 (citing Iqbal, 129 S. Ct. at 1950).

Third, a district

court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a
plausible claim for relief.

Santiago, 629 F.3d at 130.

A

complaint must do more than allege the plaintiff's entitlement
to relief.

Fowler, 578 F.3d at 210; see also Phillips v. Cnty.

of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the
“Supreme Court’s Twombly formulation of the pleading standard
can be summed up thus: stating ... a claim requires a complaint
with enough factual matter (taken as true) to suggest the
required element. This does not impose a probability requirement
at the pleading stage, but instead simply calls for enough facts
to raise a reasonable expectation that discovery will reveal
evidence of the necessary element”) (internal quotations and
citations omitted).

A court need not credit either “bald
6

assertions” or “legal conclusions” in a complaint when deciding
a motion to dismiss.

In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410, 1429-30 (3d Cir. 1997).
Finally, a court in reviewing a Rule 12(b)(6) motion must
only consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).

A court may consider,

however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”

Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
IV.
1.

DISCUSSION
Fair Credit Reporting Act
Defendant argues that Plaintiff fails to state a claim

under the FCRA and Plaintiff’s FCRA claims are barred by the
Act’s two year statute of limitations.

The crux of Defendant’s

argument is that there is no private right of action under the
relevant section of the FCRA.
“‘Congress enacted the FCRA in 1970 to ensure fair and
accurate credit reporting, promote efficiency in the banking
system, and protect consumer privacy.’...

In doing so, Congress

sought to preserve the consumer’s privacy in the information
7

maintained by consumer reporting agencies.”

Gelman v. State

Farm Mut. Auto. Ins. Co., 583 F.3d 187, 191 (3d Cir. 2009)
(citing Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007);
Cole v. U.S. Capital, Inc., 389 F.3d 719, 725 (7th Cir. 2004)).
Under the Act, “consumer reporting agencies” (“CRAs”) are
entities which “regularly engage[ ] ... in the practice of
assembling or evaluating consumer credit information or other
information on consumers for the purpose of furnishing consumer
reports to third parties[.]”

15 U.S.C. § 1681a(f).

Plaintiff alleges that Defendant “refus[ed] to remove or
correct inaccuracies regarding [the foreclosure], despite
written correspondence specifying the inaccuracies and providing
information that would facilitate a reasonable reinvestigation
of the matter.”

Compl. ¶ 4.

Plaintiff appears to allege a

violation of Section 1681s-2 of the FCRA, which establishes the
“responsibilities of furnishers of information to consumer
reporting agencies.”

Section 1681s-2(a) further establishes the

“duty of furnishers of information to provide accurate
information.”
As Defendant correctly argues, there is no private cause of
action under Section 1681s-2(a).

The express language of the

Sections 1681s-2(c) and (d) limit the enforcement of Section
1681s-2(a) to federal agencies and officials and state
officials.

15 U.S.C. §§ 1681s-2(c),(d); see also Seamans v.
8

Temple Univ., 744 F.3d 853, 864 (3d Cir. 2014) (“FCRA explicitly
precludes private suits for failure to comply with [Section
1681s-2(a)] ....”).
Section 1681o authorizes a private cause of action against
a furnisher of information for a violation of Section 1681s2(b); however, Plaintiff does not have an FCRA claim under this
section unless he alleges that he notified the CRAs of a
dispute.

Seamans, 744 F.3d at 864.

Plaintiff fails to allege

any facts in his complaint that he notified any CRA of any
dispute, thus he failed to plead an FCRA violation under Section
1681s-2(b).
Even if Plaintiff alleged sufficient facts to support a
FCRA claim, such a claim is time-barred.

The statute of

limitations on a FCRA claim is two years.

15 U.S.C. § 1681p;

see also Houghton v. Ins. Crime Prevention Inst., 795 F.2d 322,
323 (3d Cir. 1986).

The action must be brought within two years

from the date on which the liability arises or the discovery of
misrepresentation of material information in establishing the
defendant’s liability.

Id. at 324.

In the Third Circuit, the

Court may only dismiss a complaint on statute of limitations
grounds under Fed. R. Civ. P. 12(b)(6) where “the bar is ...
apparent on the face of the complaint.”

Robinson v. Johnson,

313 F.3d 128, 135(3d Cir. 2002) (court may dismiss “only if ‘the
time alleged in the statement of a claim shows that the cause of
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action has not been brought within the statute of
limitations.’”) (quoting Hanna v. U.S. Veterans’ Admin. Hosp.,
514 F.2d 1092, 1094 (3d Cir. 1975)).
Plaintiff filed the original complaint on September 28,
2011.

Plaintiff fails to allege any violation of the FCRA

occurred within the two-year statutory period prior to the
filing of his complaint.

Thus, it is apparent on the face of

the complaint that Plaintiff’s alleged FCRA claims are timebarred.
Accordingly, Plaintiff’s FCRA claims will be dismissed with
prejudice as Plaintiff’s motion to amend and PAC are futile in
addressing the deficiencies noted above.
2.

Fair Debt Collection Practices Act
Defendant argues that Plaintiff fails to state a claim

under the FDCPA and Plaintiff’s FDCPA claims are barred by the
Act’s one year statute of limitations.

The crux of Defendant’s

argument is that Plaintiff fails to allege specific facts
showing that Defendant violated the Act.
The FDCPA was enacted “to eliminate abusive debt collection
practices which contribute to the number of personal
bankruptcies, to marital instability, to the loss of jobs, and
to invasions of individual privacy.”

Wilson v. Quadramed Corp.,

225 F.3d 350, 354 (3d Cir. 2000) (citations and internal
quotations omitted).

As Congress explained, “the purpose of the
10

Act was not only to eliminate abusive debt collection practices,
but also to ‘insure that those debt collectors who refrain from
using abusive debt collection practices are not competitively
disadvantaged.’”

Lesher v. Law Offices of Mitchell N. Kay, PC,

650 F.3d 993, 996 (3d Cir. 2011) (citing 15 U.S.C. § 1692(e)).
In light of the inadequacy of the existing consumer protection
laws at the time, Congress elected to give consumers a private
right of action against debt collectors who fail to comply with
the FDCPA’s requirements.

Lesher, 650 F.3d at 996–97.

The

FDCPA prohibits various debt collection practices including:
harassment or abuse; false and misleading representations; and
unfair or unconscionable practices. 15 U.S.C. §§ 1692d-f.
An action under the FDCPA must be brought “within one year
from the date on which the violation occurs.”
1692k(d).

15 U.S.C. §

In Schaffhauser v. Citibank (S.D.) N.A., 340 F. App'x

128 (3d Cir. 2009), the Third Circuit considered the issue of
when the one-year statute of limitations begins to run.

The

court noted that some courts have held that FDCPA claims begin
to run on the date of the underlying collection action was
filed, while others use the date the purported debtor was served
with the complaint.

Id. at 130-31.

The Third Circuit declined

to endorse one of these two approaches, instead finding that
under either approach, the plaintiff’s complaint was untimely.
Id. at 131.
11

Plaintiff alleges that Defendant engaged in “collection
tactics” in violation of the FDCPA.

Compl. ¶ 4.

Plaintiff

fails to allege any facts to show that Defendant harassed or
abused Plaintiff in violation of 15 U.S.C. § 1692d; engaged in
any false, deceptive or misleading representation in violation
of 15 U.S.C. § 1692e; or used any unfair or unconscionable means
in violation of 15 U.S.C. § 1692f.

Plaintiff merely makes

conclusory statements without alleging any facts.
Even if Plaintiff alleged sufficient facts to support a
FDCPA claim, such a claim is time-barred.

The statute of

limitations on a FDCPA claim is one year.

15 U.S.C. § 1692k(d).

Plaintiff filed the original complaint on September 28, 2011.
Plaintiff fails to allege any violation of the FDCPA occurred
within the one-year statutory period prior to the filing of his
complaint.

Thus, under either approach articulated by the Third

Circuit in Schaffhauser, Plaintiff’s FDCPA claims are barred by
the one-year statute of limitations.
Accordingly, Plaintiff’s FDCPA claims will be dismissed
with prejudice as Plaintiff’s motion to amend and PAC are futile
in addressing the deficiency noted above.
3.

1968 Charter Act
The 1968 Charter Act changed Federal National Mortgage

Association’s (FNMA) charter and also created the Government
National Mortgage Association (GNMA).
12

12 U.S.C. § 1717(a)(2).

The purpose of these entities is to “establish and stabilize
secondary markets for residential mortgages in order to ‘promote
access to mortgage credit throughout the Nation.’”

Delaware

Cnty., Pa. v. Fed. Hous. Fin. Agency, 747 F.3d 215, 219 (3d Cir.
2014) (quoting 12 U.S.C. § 1716)).

While the FNMA and the GNMA

may sue and be sued in their corporate names under Section
1723a(a), the 1968 Charter Act only provides the rights and the
obligations of these entities.

See 12 U.S.C. § 1716 et seq.

Here, Plaintiff alleges that Defendant had no authority to
initiate the foreclosure proceedings under the 1968 Charter Act.
Compl. ¶¶ 16, 18.

Plaintiff fails to direct the Court to any

provision of the 1968 Charter Act that governs Defendant’s
alleged conduct.

The Court further notes that Plaintiff’s

motion to amend and PAC seem to abandon his claims under the
1968 Charter Act.

Accordingly, Plaintiff’s claims under the

1968 Charter Act will be dismissed without prejudice.
4.

Title 12 of the Delaware Code
Plaintiff references Title 12 of the Delaware Code in the

caption of the complaint.

Compl. at 1.

Title 12 of the

Delaware Code is titled, “Decedents’ Estates and Fiduciary
Relations.”

DEL. CODE. ANN. tit. 12.

Plaintiff fails to discuss

the Delaware Code except in the caption and also fails to state
facts that show Defendant allegedly violated Title 12 of the
Delaware Code.

The Court further notes that Plaintiff’s motion
13

to amend and PAC seem to abandon his claims under Title 12 of
the Delaware Code.

Accordingly, Plaintiff’s claims under Title

12 of the Delaware Code will be dismissed without prejudice.
5.

Fraud
Plaintiff also alleges that Defendant committed fraud.

Compl. ¶¶ 13-15.

Under Delaware law, the elements for common

law fraud are: “(1) false representation, usually of fact; (2)
made either with knowledge or belief or with reckless
indifference to its falsity; (3) with an intent to induce the
plaintiff to act or refrain from acting; (4) the plaintiffs
action or inaction resulted from a reasonable reliance on the
representation; and (5) reliance damages the defendant.”

Am.

Gen. Life Ins. v. Goldstein, 741 F. Supp. 2d 604, 612 (D. Del.
2012) (quoting Browne v. Robb, 583 A.2d 949, 955 (Del. 1990)).
“Pursuant to Federal Rule of civil Procedure 9(b), a heightened
pleading standard applies to fraud claims, requiring that in all
averments of fraud ... the circumstances constituting fraud ...
shall be stated with particularity.”

Id. (quotation and

citation omitted).
Plaintiff merely makes conclusory statements that Defendant
committed “mortgage fraud” without alleging specific facts with
particularity.

The Court further notes that Plaintiff’s motion

to amend and PAC are futile in addressing the deficiency noted
above.

Accordingly, Plaintiff’s fraud claims will be dismissed
14

without prejudice.
6.

Foreclosure Claims
Plaintiff also asks the Court to review “the lower Court’s

Record.”

Compl. ¶ 19.

The Court interprets this as Plaintiff’s

request for this Court to exercise appellate jurisdiction over
the Delaware Supreme Court’s decision affirming the foreclosure
at issue in the present matter.

The Court lacks jurisdiction

over suits that are essentially appeals from state-court
judgments under the Rooker-Feldman doctrine.

Great W. Mining &

Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 165 (3d Cir.
2010).

The doctrine applies when: “(1) the federal plaintiff

lost in state court; (2) the plaintiff ‘complain[s] of injuries
cause by [the] state-court judgments’; (3) those judgments were
rendered before the federal suit was filed; and (4) the
plaintiff is inviting the district court to review and reject
the state judgements.”

Id. at 166 (quoting Exxon Mobil Corp. v.

Saudi Basic Indus. Corp, 544 U.S. 280, 284 (2005)).
Here, Plaintiff lost in state court when the Delaware
Supreme Court affirmed the foreclosure on October 8, 2008;
Plaintiff alleges injuries from that decision; the federal suit
was filed after that decision on September 28, 2011; and
Plaintiff requests the Court to review and reject the state
judgment.

Accordingly, the Court finds that the Rooker-Feldman

doctrine prohibits the Court from exercising appellate
15

jurisdiction over the Delaware Supreme Court and Plaintiff’s
foreclosure claims will be dismissed with prejudice.
7.

Injunctive Relief
Plaintiff further requests an injunctive relief from the

continued enforcement of the foreclosure judgment in state
court.

Compl. ¶ 19.

However, the Anti-Injunction Act prohibits

federal courts from enjoining state court proceedings.

Williams

v. BASF Catalysts, LLC, 765 F.3d 306, 325 (3d Cir. 2014);
Colahar v. Wells Fargo Bank N.A., 56 F. Supp. 3d 603, 607 (D.
Del. 2014) (quoting 28 U.S.C. § 2283 (“A court of the United
States may not grant injunction to stay proceedings in a State
Court except as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.”)); Clark v. U.S. Bank Nat’l Ass’n,
No. 03-5452, 2004 WL 1380166, *3 (E.D. Pa. June 18, 2004) (“The
Anti-Injunction Act simply does not allow federal courts to
enjoin state court proceedings, including mortgage foreclosure
actions, absent the application of an exception under the
statute.”).

The three exceptions stated in the Act are to be

construed narrowly.

In re Diet Drugs, 282 F.3d 220, 231 (3d

Cir. 2002).
Here, Plaintiff has not directed the Court to any
applicable exceptions to the Anti-Injunction Act.

The Court

further finds that none of the narrowly construed exceptions are
16

applicable to the present matter.

Accordingly, Plaintiff’s

claim for injunctive relief will be dismissed with prejudice.
8.

Real Estate Settlement Procedures Act
Plaintiff alleges that his “mortgage was assigned ...

without him ever having received proper notification thereof,
and having never been notified as to the persons holding his
original note.”

Compl. ¶ 11.

Plaintiff does not explicitly

allege a violation of the Real Estate Settlement Procedures Act
(RESPA) 12 U.S.C. § 2601 et seq., however, Plaintiff appears to
allege a RESPA violation.
RESPA requires that a “servicer of any federally related
mortgage loan shall notify the borrower in writing of any
assignment, sales, or transfer of the servicing of the loan to
any other person.”

12 U.S.C. § 2605(b)(1).

Plaintiff only

alleges that he did not receive notice when his mortgage was
transferred and fails to allege that he was not notified when a
servicing transfer occurred.

Moreover, Plaintiff identifies

Select as the assigned service agent.4

Compl. ¶ 10.

Plaintiff

fails to allege Defendant BONY ever serviced his mortgage, and
therefore had a duty to notify him of an alleged service
transfer of his mortgage under RESPA.

4

The Court finds that

The Court notes that in Plaintiff’s PAC, Plaintiff identifies
“EQCC of America” as the initial servicer of the mortgage and
Select as the “expected successor servicer.” PAC ¶ 75.
17

Plaintiff fails to state a RESPA claim upon which relief may be
granted and Plaintiff’s motion to amend and PAC are futile in
correcting the deficiency.

Accordingly, Plaintiff’s RESPA claim

will be dismissed without prejudice.
9.

Truth in Lending Act
Plaintiff does not explicitly allege a violation of the

Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., however
Plaintiff alleges that his mortgage was assigned without
notification, thus the Court will address the allegation.

Civil

liability for failure to provide notice of new creditor under
Section 1641(g) is governed by Section 1640(a). 15 U.S.C. §
1640(a).

The Third Circuit has interpreted the statutory

language of Section 1640(a) as requiring a showing of
detrimental reliance to recover actual damages.

Vallies v. Sky

Bank, 591 F.3d 152, 157-58 (3d Cir. 2009) (“In the context of
TILA disclosure violations, a creditor’s failure to properly
disclose must cause actual damages; that is, without detrimental
reliance on faulty disclosures (or no disclosure), there is no
loss (or actual damage).”).
Here, Plaintiff alleges that he was not notified of the
assignment of his mortgage; however, he fails to allege that the
lack of notice caused him actual damages.
detrimental reliance and no loss.

Thus, there were no

The Court finds that

Plaintiff fails to state claim under TILA upon which relief can
18

be granted and Plaintiff’s motion to amend and PAC are futile in
correcting the deficiency noted above.

Accordingly, Plaintiff’s

TILA claim will be dismissed without prejudice.
10.

Motion to Amend

Amendments to pleadings are governed by Fed. R. Civ. P. 15,
which provides that the Court “should freely give leave when
justice so requires.”

Fed. R. Civ. P. 15(a)(2).

The Third

Circuit has shown a strong liberality in allowing amendments
under Rule 15 in order to ensure that claims will be decided on
the merits rather than on technicalities.

Dole v. Arco Chemical

Co., 921 F.2d 484, 487 (3d Cir. 1990); Bechtel v. Robinson, 886
F.2d 644, 652 (3d Cir. 1989).

An amendment must be permitted in

the absence of undue delay, bad faith, dilatory motive, unfair
prejudice, or futility of amendment.

Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Foman v. Davis,
371 U.S. 178, 182 (1962)).

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.

Jablonski v. Pan American World Airways,

Inc., 863 F.2d 289, 292 (3d Cir. 1988).
As discussed above, Plaintiff’s motion to amend and PAC are
futile in correcting the deficiencies of his original complaint.
In the PAC, Plaintiff fails to allege any specific facts which
would support a claim upon which relief may be granted and
19

merely makes conclusory statements, often reciting the elements
of each claim.

Accordingly, Plaintiff’s motion to amend will be

denied.
V.

CONCLUSION
The Court finds that Plaintiff fails to plead sufficient

facts to maintain his claims against Defendant and that Proposed
Amended Complaint is futile in correcting the deficiencies
discussed.
For the foregoing reasons, Defendant’s motion to dismiss
will be granted.

In particular, Plaintiff’s FCRA, FDCPA,

foreclosure, and injunctive relief claims will be dismissed with
prejudice.

Plaintiff’s claims under the 1968 Charter Act, Title

12 of the Delaware Code, common law fraud, RESPA, and TILA will
be dismissed without prejudice.

Furthermore, Plaintiff’s motion

to amend will be denied.
An Order consistent with this Opinion will be entered.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: December 15, 2015
At Camden, New Jersey

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