OLIVER et al v. BANK OF AMERICA, N.A. et al

Filing 19

OPINION. Signed by Judge Renee Marie Bumb on 4/14/2014. (dmr) (n.m.)

[Docket. No. 16]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

PEDRO J. OLIVER, and MYRNA E.
OLIVER,
Plaintiffs,
v.

Civil No. 13-cv-4888 (RMB/KMW)
OPINION

BANK OF AMERICA, N.A., et al.,
Defendants.

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:
This matter comes before the Court upon a motion by
Plaintiffs Myrna and Pedro Oliver (the “Plaintiffs”) for leave
to file an amended complaint pursuant to Federal Rule of Civil
Procedure 15(a). (Dkt. Ent. 16.) Defendant Bank of America, N.A.
(“BOA”), opposes this motion. For the reasons set forth below,
Plaintiffs’ motion shall be denied.
1

I.

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 BOA obtained an interest in the property via a
“purported loan” which was “obtained by wrongful acts of fraud,
fraudulent inducement, concealment and fraudulent
misrepresentation.” (Dkt. Ent. 1 at 16, ¶ 11.) Plaintiffs sought
to quiet title to the property and requested a “Non-Verification
of Debt.”

(Id. at ¶ 32.) BOA moved to dismiss the action, which

this Court granted as unopposed on October 28, 2013. (Dkt. Ents.
5, 7.) Plaintiffs subsequently requested permission to oppose
the motion to dismiss and the Court granted the request,
reinstating the motion. (Dkt. Ents. 8, 11.) However, the Court
subsequently granted BOA’s motion and dismissed the matter for
failure to state a claim. (Dkt. Ent. 14.) Plaintiffs now seek
leave to file an amended complaint (the “AC”). (Dkt. Ent. 16.)
Plaintiffs’ proposed AC seeks to quiet title to their
property. On August 14, 2008, Plaintiffs borrowed $220,725 from
Countrywide Bank, FSB (“Countrywide”), and signed a Note and
Mortgage evidencing the loan. (AC ¶ 8 & Ex. B.) The mortgage was
granted to Mortgage Electronic Registration Systems, Inc.
2

(“MERS”) as nominee for Countrywide and its successors and
assignees. (Id. at Ex. B.) Plaintiffs claim that Defendants BOA
and Government National Mortgage Association (“Ginnie Mae”) are
not entitled to payments from Plaintiffs (AC ¶ 17) because inter
alia their mortgage was securitized causing the Note to be sold
to investor Ginnie Mae while the Mortgage was retained by BOA.
(Id. at ¶¶ 19-21.) Plaintiffs allege that because the Mortgage
and Note are not held by the same party, BOA cannot lawfully
collect payments on the Mortgage. (Id.) Plaintiffs further
allege that because the Note was securitized, it was paid in
full by the investors and therefore Plaintiffs owe no money on
the Note. (Id. at ¶ 27.)
In addition, Plaintiffs attempt to forgo payments on their
mortgage on grounds that BOA fraudulently engaged in robosigning and failed to notify Plaintiffs that their mortgage had
been assigned as required by the Mortgage documents. (Id. at
¶¶ 28, 33.)
II.

Standard

A motion for leave to amend is governed by Federal Rule of
Civil Procedure 15(a), which provides that “[t]he court should
freely give leave when justice so requires.” Accordingly, a
motion for leave to amend the pleadings “should [] only be
denied where there is ‘bad faith or dilatory motive, truly undue
or unexplained delay, repeated failure to cure deficiencies by
3

amendments previously allowed or futility of amendment.’”
Ferrante v. Amgen, Inc., No. 13-07344, 2014 WL 1092555, at *2
(D.N.J. Mar. 18, 2014) (quoting Long v. Wilson, 393 F.3d 390,
400 (3d Cir. 2004)). An amendment is futile, and therefore
grounds for denial of a motion for leave to amend, where “the
complaint, as amended, would fail to state a claim upon which
relief could be granted.” In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1434 (3d Cir. 1997); see also Great
Western Mining & Mineral Co., 615 F.3d 159, 175 (3d Cir. 2010).
“A court assessing ‘futility’ ‘applies the same standard of
legal sufficiency’ employed in the Rule 12(b)(6) context.”
Ferrante, 2014 WL 1092555, at *2 (quoting id.).
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-defendantunlawfully 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
4

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 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.” Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir.
2012). 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
III. Analysis

1

Plaintiffs attached several exhibits to their Complaint, which
this Court may properly consider pursuant to the instant motion to
dismiss. Similarly, the Court may consider the exhibits attached to
BOA’s opposition, which consist of the Mortgage, Note, and Assignment
of Mortgage to BOA, and are largely duplicative of Plaintiffs’
exhibits.

5

The pleading requirements for a quiet title action is
established by the state’s quiet title statute. English v. Fed.
Nat’l Mortg. Ass’n, No. 13-2028, 2013 WL 6188572, at *3 (D.N.J.
Nov. 26, 2013) (quoting Club Comanche, Inc. v. Gov’t of the
Virgin Islands, 278 F.3d 250, 259 (3d Cir. 2002)). New Jersey’s
quiet title statute provides:
Any person in the peaceable possession of lands in
this state and claiming ownership thereof, may, when
his title thereto, or any part thereof, Is denied or
disputed, or any other person claims or is claimed to
own the same, or any part thereof or interest therein,
or to hold a lien or encumbrance thereon, and when no
action is pending to enforce or test the validity of
such title, claim or encumbrance, maintain an action
in the superior court to settle the title to such
lands and to clear up all doubts and disputes
concerning the same.
N.J.S.A. § 2A:621; (see also AC ¶ 15). “The purpose of an action
to quiet title is to put within the power of a person, who is in
peaceable possession of realty as an owner, a means to compel
any other person, who asserts a hostile right or claim, or who
is reputed to hold such a right or claim, to come forward and
either disclaim or show his right or claim, and submit it to
judicial determination.” English, 2013 WL 6188572, at *4
(quoting Schiano v. MBNA, No. 05–171, 2013 WL 2452681, at *26
(D.N.J. Feb. 11, 2013)). A quiet title action “was not intended
to permit a person to create a title out of whole cloth or
shortcut the rigorous requirements of adverse possession to
acquire title.” Jacobs v. Fannie Mae, C-16002-12, 2013 WL
6

3196933, at *2 (N.J. Super. App. Div. June 26, 2013) (quoting
Powell v. Mayo, 24 N.J. Eq. 178 (Ch. Div. 1873)). Moreover, “it
is a settled rule that in an action to quiet title the
plaintiffs must rely upon the strength of their own title and
not upon the weakness of that of the defendants.” Dudley v.
Meyers, 422 F.2d 1389, 1394-95 (3d Cir. 1970).
Plaintiffs do not adequately allege that any of the
defendants’ interests in the property is somehow wrongful. As
BOA points out, Plaintiffs do not allege that they paid off the
Note and extinguished the Mortgage lien. 2 Rather, they generally
challenge the process by which the Mortgage and Note were
transferred and assigned by and among BOA and Countrywide
entities.
English v. Federal National Mortgage Association involved
similar allegations to those asserted by Plaintiffs here and is
therefore instructive. The plaintiff in English filed a quiet
title action claiming that the chain of title was broken and the
assignment of her mortgage was fraudulent in that it involved a
robo-signer. Id. at *2. The Court determined that she failed to
state a claim as she failed “to allege how any perceived
irregularities in the assignments between third parties cloud

2 Plaintiffs do allege that “the note is paid in full,” but this is
based upon their allegation that the Note was securitized and therefore paid
in full by the investors in the securities. (AC ¶¶ 25, 27.) However, this
reflects Plaintiffs’ misunderstanding of the securitization process.

7

title in the mortgage itself.” Id. at *3. It further held that
because the plaintiff failed to allege that she was a party or
intended third party beneficiary to the assignment of mortgage,
she lacked standing to challenge the assignment. Id. at *4 (“In
the context of a mortgage assignment, case law has held that a
mortgagor, or borrower, does not have standing to allege that an
assignment between two third parties is invalid.” (citing
Grullon v. Bank of Am., N.A., No. 10–5427, 2013 U.S. Dist. LEXIS
48394, at *31–35 (D.N.J. Mar. 28, 2013); Schiano, 2013 WL
2452681, at *25–26; In re Walker, 466 B.R. 271, 285 (Bankr. E.D.
Pa. 2012)). Plaintiffs’ complaint suffers from similar
deficiencies and must therefore be dismissed. See also Glenn v.
Hayman, No. 07-112, 2007 WL 894213, at *10 n.15 (D.N.J. Mar. 21,
2007) (“Plaintiffs, non-parties to Defendants’ contracts, have
no standing to sue for this alleged non-performance.”). (See
Opp., Dkt. Ent. 17, at 5-6 (citing cases).) 3
IV.

Conclusion

For the reasons discussed above, Plaintiffs’ proposed AC
still fails to state a claim and thus the proposed amendment is
futile. Accordingly, the Court will deny Plaintiffs’ motion for

3

Plaintiffs also contend that Ginnie Mae claims to be the holder in due
course of Plaintiffs’ Mortgage and Note, which, according to Plaintiffs, BOA
contests. However, this argument appears to be contradicted by the documents
attached to Plaintiffs’ AC, which suggest that Ginnie Mae is at most an
investor in the securitization backed by mortgage loans including Plaintiffs.
(See AC Ex. D.) In fact, BOA contends that the current investor in
Plaintiffs’ loan is BANA Gov’t 1st Liens CGI HFI. (Declaration of Jeffrey P.
Catenacci, Dkt. Ent. 17-1 ¶ 3.)

8

leave to amend the complaint and dismiss the matter. An
accompanying Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated:

April 14, 2014

9