OLIVER et al v. BANK OF AMERICA, N.A. et al
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 2/11/2014. (dmr)(n.m.)
[Docket. No. 5]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
PEDRO J. OLIVER, and MYRNA E.
OLIVER,
Plaintiffs,
Civil No. 13-cv-4888 (RMB/KMW)
OPINION
v.
BANK OF AMERICA, N.A.,
Defendant.
APPEARANCES:
Pedro J. Oliver
Myrna E. Oliver
49 Oakton Drive
Atco, New Jersey 08004-2489
Pro Se Plaintiffs
Jeffrey P. Catenacci
WINSTON & STRAWN LLP
The Legal Center
One Riverfront Plaza, Suite 730
Newark, New Jersey 07102
Attorneys for Defendant
BUMB, United States District Judge:
I.
Introduction:
This matter comes before the Court upon a motion by
Defendant Bank of America, N.A. and its predecessor, Countrywide
Bank FSB (hereinafter “Defendant”), to dismiss Plaintiffs’
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
[Docket No. 5].
This Court previously granted this motion as
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unopposed [Docket No. 7] but later permitted the Plaintiffs to
file late opposition papers and have the Motion to Dismiss
reinstated [Docket No. 11].
For the reasons set forth below,
the Defendant’s motion shall be granted.
II.
Background:
The Plaintiffs filed a Complaint in New Jersey Superior
Court, Camden County, seeking to quiet title to real property
located at 49 Oakton Drive, Atco, New Jersey (“the property”).
That Complaint was timely removed to this Court by the Defendant
on August 13, 2013.
In the underlying Complaint, the Plaintiffs
allege that the Defendant obtained an interest in the property
via a “purported loan” which was “obtained by wrongful acts of
fraud, fraudulent inducement, concealment and fraudulent
misrepresentation.”
[Docket No. 1 at 16, ¶ 11].
The Plaintiffs aver that the Defendant never used “any of
its own money to fund the promissory note instrument or the
underlying purported loan,” [id. at ¶ 18], and “arbitrarily and
discretely stole [the] promissory note, claimed it as its own,
and converted the same to a negotiable instrument. . . .”
[Id.
at ¶ 23]. Overall, because the Defendant is alleged to have
procured signatures on the mortgage and promissory note on
fraudulent grounds, the Plaintiffs contend that there is no
lawful, binding contract between the parties.
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Id. at ¶ 25.
Based on these allegations, the Plaintiffs seek to quiet
title to the property and request a “Non-Verification of Debt.”
In support of this request, Plaintiffs contend that the
Defendant “cannot be a real party in interest authorized to
enforce the security instrument pursuant to the Real Estate
Settlement Procedures Act (RESPA).”
Id. at ¶ 32.
III. Standard:
To withstand a motion to dismiss under Federal Rule of
Civil Procedure 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.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
Id. at 678.
“[A]n unadorned, the-
defendant-unlawfully harmed-me accusation” does not suffice to
survive a motion to dismiss.
Id. at 678. “[A] plaintiff's
obligation to provide the 'grounds' of his 'entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)).
“Threadbare recitals of the elements
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of a cause of action, supported by mere conclusory statements,
do not suffice.”
Iqbal, 556 U.S. at 678.
In reviewing a plaintiff’s allegations, the district court
“must accept as true all well-pled factual allegations as well
as all reasonable inferences that can be drawn from them, and
construe those allegations in the light most favorable to the
plaintiff.”
2012).
Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir.
Only the allegations in the complaint, and “matters of
public record, orders, exhibits attached to the complaint and
items appearing in the record of the case” are taken into
consideration.
Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1384 n.2 (3d Cir. 1994)(citing Chester Cty.
Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812
(3d Cir. 1990)).1
IV.
Analysis:
Plaintiffs’ Fraud Claims
In order to satisfy the heightened pleading standard
expressed under Federal Rule of Civil Procedure Rule 9(b),
Plaintiffs must plead with particularity the circumstances
constituting a fraud.
Fed. R. Civ. P. 9(b).
This can be
accomplished by pleading “the date, time, and place” of the
1
Plaintiffs attached several exhibits to their Complaint, which
this Court may properly consider pursuant to the instant motion to
dismiss.
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fraud or otherwise injecting “precision or some measure of
substantiation into the allegations.”
Slimm v. Bank of Am.
Corp., No. 12-5846, 2013 U.S. Dist. LEXIS 62849, at * 46-47
(D.N.J. May 2, 2013)(quoting Frederico v. Home Depot, 507 F. 3d
188, 200 (3d Cir. 2007)).
A plaintiff alleging fraud must state
the circumstances of the fraud with sufficient particularity “to
place the defendants on notice of the precise misconduct with
which they are charged.”
223-24 (3d Cir. 2004).
Lum v. Bank of America, 361 F.3d 217,
In other words, the Rule “requires
plaintiffs to plead the who, what, when, where, and how: the
first paragraph of any newspaper story.”
In re Advanta Corp.
Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999).
This standard
applies to all of Plaintiffs’ claims sounding in fraud – i.e.,
fraud, fraud in the inducement, and “fraudulent representation.”
To allege fraud in New Jersey, a plaintiff must plead “(1)
a material misrepresentation of a presently existing or past
fact; (2) knowledge or belief by the defendant of its falsity;
(3) an intention that the other person rely on it; (4)
reasonable reliance thereon by the other person; and (5)
resulting damages.”
Banco Popular No. Am. v. Gandi, 184 N.J.
161, 876 A.2d 253, 260 (N.J. 2005).
“Under New Jersey law, the
elements required to establish a claim of common law fraud,
fraudulent misrepresentation, and fraudulent inducement are
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identical[.]”
Prudential Ins. Co. of Am. v. Goldman, Sachs &
Co., 2013 U.S. Dist. LEXIS 50788, at *22 (D.N.J. Apr. 9, 2013).
Defendant argues that the Plaintiffs have failed to plead
all of their fraud-based claims with the particularly required
by Rule 9(b).
This Court agrees.
The underlying Complaint is
replete with legal conclusions unsupported by factual
allegations.
Moreover, this Court agrees with Defendant that
the Plaintiffs’ allegations lack the “the date, time, and place”
of the fraud or other requisite “precision or some measure of
substantiation” required to survive the instant motion.
Slimm
v. Bank of Am. Corp., No. 12-5846, 2013 U.S. Dist. LEXIS 62849,
at * 46-47 (D.N.J. May 2, 2013)(quoting Frederico v. Home Depot,
507 F. 3d 188, 200 (3d Cir. 2007)).
A review of the Complaint
reveals that Plaintiffs have not provided specifics as to who
made the alleged material misrepresentations other than the
generic “Defendant,” when such statements were purportedly made,
or what those statements allegedly were.
As such, the
Defendant’s motion to dismiss Plaintiff’s fraud claims shall be
granted.
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Plaintiffs’ “Non-Verification of Debt” Claim2
As Plaintiffs are appearing pro se, this Court will
construe the “Non-Verification of Debt” as a claim under the
Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §2601
et seq.
“RESPA is a federal consumer protection statute
applicable to mortgage lenders.
In part, RESPA. . . compels
lenders to disclose to borrowers the fact that servicing on
their loans may be transferred[,] and requires loan servicers to
respond in a timely fashion to ‘Qualified Written Requests’ from
borrowers seeking information regarding the status of home
loans.”
Straker v. Deutsche Bank Nat'l Trust, No. 9-338, 2010
U.S. Dist. LEXIS 141047 (M.D. Pa. Sept. 22, 2010).
Failure to
plead actual damages in conjunction with a RESPA claim will
result in its dismissal.
See Mercado v. Bank of America, No.
12-1123, 2012 U.S. Dist. LEXIS 163395, at *17-18 (D.N.J. Nov.
15, 2012)(stating that failure to allege actual damages is a
pleading defect).
Defendant argues that Plaintiffs have failed to state a
claim under RESPA because they have not alleged that they
suffered actual damages.
This Court agrees.
2
While the
In their opposition papers, the Plaintiffs cite sections of the
Truth in Lending Act, 125 U.S.C. § 1641 et seq. To the extent
Plaintiffs seek to assert a cause of action on TILA grounds (“TILA”),
such a cause of action is not asserted in their Complaint and,
moreover, that action would likely be barred by the applicable one
year statute of limitations. See 15 U.S.C. § 1640(e) (one-year
statute of limitations for claims under TILA).
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Plaintiffs have alleged that Defendant did not respond to their
written requests, their Complaint “does not allege any specific
damage suffered by Plaintiff[s] ‘as the result of the alleged
RESPA violations and [it does] not allege a causal link between
the alleged violations and the alleged damages.’”
Jones v.
Select Portfolio Servicing, Inc., No. 08-972, 2008 U.S. Dist.
LEXIS 33284, at *28 (E.D. Pa. Apr. 23, 2008)(quoting Jones v.
ABN AMRO Mortgage Group, Inc., 551 F. Supp. 2d 400 (E.D. Pa.
Apr. 10, 2008)).
Instead, Plaintiffs only request that this
Court quiet title to their property and assert no causal link to
their unanswered RESPA requests.
As such, Plaintiffs’ RESPA
claim fails under 12(b)(6) scrutiny and shall be dismissed.
See
Mercado, 2012 U.S. Dist. LEXIS 163395, at *17-18 (dismissing a
RESPA claim under similar circumstances).
V.
Leave to Amend:
While the Defendant asks this Court to dismiss the above-
captioned matter with prejudice, at this stage of the
proceedings, and in consideration of Plaintiffs’ pro se status,
this Court will permit Plaintiffs to file for leave to amend
their Complaint out of an abundance of caution.
Cf. Fletcher-
Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,
252-53 (3d Cir. 2007)(finding that "in ordinary civil litigation
it is hardly error for a district court to enter final judgment
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after granting a Rule 12(b)(6) motion to dismiss when the
plaintiff has not properly requested leave to amend its
complaint” and noting that in “non-civil rights cases, the
settled rule is that properly requesting leave to amend a
complaint requires submitting a draft amended complaint.").
VI.
Conclusion:
For the reasons discussed above, this Court will grant the
Defendant’s motion to dismiss.
The Plaintiffs will have thirty
(30) days to reopen this matter via the filing of a motion for
leave to file an Amended Complaint.
An accompanying Order will
issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated:
February 11, 2014
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