SLIMM et al v. BANK OF AMERICA CORPORATION et al

Filing 19

OPINION FILED. Signed by Judge Noel L. Hillman on 3/31/14. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JASON SLIMM, BRANDI N. SLIMM,
AND ROBERT H. OBRINGER,
Plaintiffs,

Civil No. 12-5846 (NLH/JS)

OPINION

v.

BANK OF AMERICA CORPORATION,
et al.,
Defendants.

APPEARANCES:
JASON D. SLIMM
BRANDI D. SLIMM
33 SOUTH BELL ROAD
BELLMAWR, NEW JERSEY
Pro Se Plaintiffs
ROBERT H. OBRINGER
244 S. BARRETT AVENUE
AUDOBON, NEW JERSEY 08106
Pro Se Plaintiff
AARON M. BENDER, ESQUIRE
TIMOTHY P. OFAK, ESQUIRE
REED SMITH, LLP
PRINCETON FORRESTAL VILLAGE
136 MAIN STREET, SUITE 250
PRINCETON, NEW JERSEY 08540
Attorneys for Defendants Bank of America Corporation, Bank
of America, N.A., BAC Home Loans Servicing, LP, ReconTrust
Company, and Mortgage Electronic Registration Systems, Inc.

WILLIAM C. SANDELANDS
SANDELANDS EYET LLP
1545 U.S. HIGHWAY 206
SUITE 304
BEDMINSTER, NJ 07921
Attorney for Defendant Aurora Bank, FSB

HILLMAN, District Judge:
In this matter, pro se plaintiffs challenge a mortgage
foreclosure.

Before the Court is an uncontested motion to

dismiss filed by Aurora Commercial Corp., successor entity to
defendant Aurora Bank FSB (“Aurora Bank”).

For the reasons

expressed below, defendant’s motion shall be granted.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The underlying facts were set forth at length in the

Court’s previous Opinion entered on May 2, 2013, and therefore,
only those facts pertinent to the present motion will be
repeated in this Opinion.

See Slimm v. Bank of America Corp.,

No. 12-5846, 2013 WL 1867035 (D.N.J. May 2, 2013).

Previously,

the Court granted the motion to dismiss filed by defendants Bank
of America Corporation, Bank of America, N.A., BAC Home Loans
Servicing, LP, ReconTrust Company, N.A., and Mortgage Electronic
Registration Systems, Inc. (collectively referred to as “Bank of
America defendants”).

Following the dismissal of the Bank of

America defendants, defendant Aurora Bank filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
which is now before the Court.

Plaintiffs filed no opposition

to Aurora Bank’s motion.
On September 28, 2006, Plaintiffs Jason D. Slimm, Brandi N.
Slimm, and Robert H. Obringer executed a promissory note
evidencing a $187,267.00 mortgage loan at a six percent (6%)
interest rate.

Pursuant to the terms of the Note, plaintiffs

were required to make a monthly payment of $1,122.76 to Aurora
Financial Group, Inc. for principal and interest due on the
loan.

Shortly after acquisition of the loan, defendants Bank of

America, BAC, and ReconTrust began to service the loan.
On March 10, 2010, Bank of America started foreclosure
proceedings on plaintiffs’ property.

On May 21, 2010, the

Slimms contacted Bank of America to attempt to work out an
arrangement by which they could avoid foreclosure and maintain
possession of their home by participating in a loan
modification.

According to plaintiffs, Bank of America agreed

to a modification of their loan agreement pursuant to the
federal Home Affordable Modification Program in December of
2010.

On February 3, 2012, the Slimms received notification

that their loan modification was denied.
Plaintiffs filed a complaint on September 14, 2012,
asserting violations of the Fair Debt Collection Practices Act,
Fair Credit Reporting Act, New Jersey Deceptive Practices Act,

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promissory estoppel, Truth in Lending Act, and federal civil
Racketeer Influenced and Corrupt Organizations Act. 1
II. JURISDICTION
The Court has federal question subject matter jurisdiction
over this action pursuant to 28 U.S.C. § 1331.

Specifically,

this matter arises under 15 U.S.C. §§ 1601, 1692, 1681 and 18
U.S.C. § 1961.

The Court exercises supplemental jurisdiction

over plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367.
III. STANDARD OF REVIEW
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

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).

Under the

1 Plaintiffs are proceeding pro se in this action, and
therefore, the Court must construe plaintiffs’ complaint
liberally. See Wallace v. Fegan, No. 11–3572, 2011 WL 6275996,
at *1 (3d Cir. Dec. 16, 2011) (“Pleadings and other submissions
by pro se litigants are subject to liberal construction[.] )
(citing Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011)).
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liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).

Bogosian v. Gulf Oil Corp., 562
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
claim.’”

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-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has

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instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6).

First, 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.
S. Ct. at 1950).

Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, 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.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950).

A complaint must do

more than allege the plaintiff's entitlement to relief.

Id.;

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”).

A court need not credit either “bald

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).

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The defendant bears the

burden of showing that no claim has been presented.

Hedges v.

U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
IV.

DISCUSSION
Plaintiffs fail to meet the Twombly/Iqbal standard.

The

allegations in plaintiffs’ complaint are directed at the Bank of
America defendants concerning plaintiffs’ request to modify
their loan.

There are no allegations directed at Aurora Bank as

the initial lender of the loan.

In fact, as argued by Aurora

Bank, the word “Aurora” only appears twice in the body of the
complaint.

Therefore, the complaint against Aurora Bank fails

to plead “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 129 S.Ct. at 1949 (The plaintiff

must allege facts that indicate “more than a sheer possibility
that a defendant has acted unlawfully.”).
Further, the name of the originating lender is “Aurora
Financial Group, Inc.”
FSB.”

Plaintiffs, however, sued “Aurora Bank

Accordingly, the originating lender, Aurora Financial

Group, Inc., is not a defendant.

Defendant has stated that the

sued entity, Aurora Bank FSB, has no affiliation with the
originating lender, Aurora Financial Group, Inc., and is a

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wholly unrelated party.
Therefore, even under the liberal pleading standard applied
to pro se parties, plaintiffs have not presented facts that
could support a plausible claim for relief against Aurora Bank
and, even if they did, plaintiffs sued the incorrect entity. 2

Aurora Bank also notes that service was attempted by
mailing a copy of the complaint to an improper address and,
therefore, it appears that service of process may have been
insufficient. See Fed.R.Civ.P. 4 (permitting service by
following state rules); New Jersey Court Rule 4:4-3(a), and 4:44(a)(1) (stating that the primary method of service is for the
summons and complaint to be personally served, or alternatively,
“[i]f personal service cannot be effected after a reasonable and
good faith attempt, which shall be described with specificity in
the proof of service required by R. 4:4-7, service may be made
by mailing a copy of the summons and complaint by registered or
certified mail, return receipt requested, to the usual place of
abode of the defendant… .”
However, the Court will not address this argument since
defendant did not specifically raise it in its 12(b)(6) motion,
but states in a footnote that “[t]o the extent this motion is
not granted in its entirety, Aurora hereby preserves its defense
of insufficient service of process under Rule 12(b)(5).”
According to Fed.R.Civ.P. 12(g), “a party that makes a motion
under [Rule 12] must not make another motion under this rule
raising a defense or objection that was available to the party
but omitted from its earlier motion.” Therefore, if defendant
wished to raise an insufficient service of process argument, it
was incumbent upon it to do so in one motion. See McCurdy v.
American Bd. of Plastic Surgery, 157 F.3d 191, 194 (3d Cir.
1998) (“[I]f a defendant seeks dismissal of the plaintiff's
complaint pursuant to Rule 12(b)(5) on the ground that service
of process was insufficient or ineffective, it must include that
defense either in its answer or together with any other Rule 12
defenses raised in a pre-answer motion.”). Thus, since
defendant did not raise an insufficient service of process
argument in its motion, its Rule 12(b)(5) defense is waived.
See id. (“Thus, if a Rule 12 motion is made and the defendant
omits its objection to the timeliness or effectiveness of
2

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V.

CONCLUSION
For the reasons set forth above, defendant Aurora Bank’s

motion to dismiss will be granted.
An appropriate Order will follow.

s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

Dated:

March 31, 2014

At Camden, New Jersey

service under Rule 12(b)(5), that objection is waived.”).
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