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

Filing 11

OPINION. Signed by Judge Robert B. Kugler on 4/30/2015. (tf, )

NOT FOR PUBLICATION

(Doc. No. 5)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
DAVID W. BOWEN, SR.,
:
:
Plaintiff,
:
:
v.
:
:
BANK OF AMERICA, N.A. et al.,
:
:
Defendants. :
___________________________________ :

Civil No. 14-3531 (RBK/AMD)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court on the Motion to Dismiss of Defendants Mortgage
Electronic Registration Systems, Inc. (“MERS”), Litton Loan Servicing, LP (“Litton”), and
PNMAC Mortgage Opportunity Fund Investors, LLC (“PNMAC”) (collectively “Defendants”),
Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(1). (Doc. No. 5.) For the reasons stated
herein, Defendants’ Motion to Dismiss will be granted in part and denied in part.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
David W. Bowen, Sr. (“Plaintiff”) entered into a mortgage loan for the purchase of his

residence located at 123 Harding Highway, Pittsgrove, New Jersey (the “Property”) on January
4, 2007. (Compl. ¶ 10.) New Century Mortgage Corporation (“New Century”) was the original
lender, and MERS was named as the nominee mortgagee. (Id.) The mortgage loan on the
Property was subsequently assigned to Bank of America, N.A. (“BANA”) c/o Litton on
September 19, 2007. (Id. ¶ 12.) Then, on August 13, 2012, the mortgage loan on the Property
was assigned from BANA to PNMAC. (Id. ¶ 15.)
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Because Plaintiff defaulted on the mortgage loan, PNMAC filed a foreclosure complaint
against the Property on January 9, 2013, (the “Foreclosure Action”), in Salem County, New
Jersey, Chancery Division. (Certification of David A. DeFleece (“DeFleece Cert.”), Ex. A.)
Plaintiff failed to plead or otherwise defend the Foreclosure Action, and PNMAC filed a Request
to Enter Default on May 10, 2013. (Id., Ex. B.) Default was entered and the Foreclosure Action
proceeded to final judgment against Plaintiff on January 8, 2014. (Id., Ex. C.) Thereafter, a Writ
of Execution was issued directing the sale of the Property. (Id., Ex. D.)
On May 19, 2014, Plaintiff filed an Emergent Application for Stay of Sheriff’s Sale in the
Foreclosure Action, which was denied by order of the New Jersey state court issued on the same
date. (Id., Ex. E.) After Plaintiff’s Emergent Application for Stay of Sheriff’s Sale was denied,
the Property was sold at Sheriff’s Sale to PNMAC as the successful bidder. (Id., Ex. F.) On or
about July 18, 2014, PNMAC filed a Writ of Possession, seeking to obtain possession of the
Property from Plaintiff. (See id., Ex. G; Defs.’ Br. at 2.)
Plaintiff filed the present Complaint, together with an ex parte application for a
temporary restraining order, on June 3, 2014. (Doc. No. 1) The Complaint alleges several
causes of action, including: violations of the Real Estate Settlement Procedures Act (“RESPA”)
(Count I); violations of the Truth in Lending Act (“TILA”) (Count II); violations of the Fair
Credit Reporting Act (“FCRA”) (Count III); intentional misrepresentation (Count IV); unjust
enrichment (Count V); civil conspiracy (Count VI); wrongful foreclosure (Count VII);
cancellation of the various loan documents (Count VIII); and quiet title (Count IX).
On September 8, 2014, Defendants filed the instant Motion to Dismiss for Lack of
Jurisdiction, arguing Plaintiff’s claims are all barred by the Rooker-Feldman doctrine, based on

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the previously entered final judgment in PNMAC’s Foreclosure Action. Because the parties
have briefed the issues in this case, the Court will proceed to a discussion of their arguments.
II.

LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a complaint may be dismissed for

lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Generally, where a defendant
moves to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction, the plaintiff bears
the burden of proving by a preponderance of the evidence that the Court has subject matter
jurisdiction. See Gould Electronics Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000). “[I]n a
factual attack under Rule 12(b)(1), the court may consider and weigh evidence outside the
pleadings to determine if it has jurisdiction.” Id. (citing Mortensen v. First Fed. Sav. And Loan
Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).
A district court may treat a party’s motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1) as either a facial or factual challenge to the court’s jurisdiction.
Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). “In reviewing a facial
attack, the court must only consider the allegations of the complaint and documents referenced
therein and attached thereto, in the light most favorable to the plaintiff.” Id. (citing PBGC v.
White, 998 F.2d 1192, 1196 (3d Cir. 1993)). “In reviewing a factual attack, the court may
consider evidence outside the pleadings.” Id. (citing Gotha v. United States, 115 F.3d 176, 17879 (3d Cir. 1997)); see United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514
(3d Cir. 2007). A district court has “substantial authority” to “weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” Mortensen v. First Fed. Sav. & Loan
Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). “[N]o presumptive truthfulness attaches to plaintiff’s

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allegations, and the existence of disputed material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.” Id.
III.

DISCUSSION
Defendants move to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(1) based on the

Rooker-Feldman doctrine. They claim Rooker-Feldman prohibits Plaintiff from challenging the
validity of the mortgage transaction and the entry of judgment in the New Jersey Superior Court
Foreclosure Action, and any action taken by the Court in this case would necessarily undermine
that state court judgment. (See Defs.’ Br. at 4.) Because the Court finds that some of the relief
sought by Plaintiff would not necessarily implicate the state court’s judgment in the Foreclosure
Action, it will only grant Defendants’ Motion to Dismiss as to Counts II, VII, VIII, and IX, and
will deny their Motion as to Counts I, III, IV, V, and VI.
(a) The Rooker-Feldman Doctrine
The Supreme Court decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), established the basic
principle that a federal district court cannot exercise jurisdiction if it would result in
“overturn[ing] an injurious state-court judgment.” Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 292 (2005).
The Rooker-Feldman doctrine is implicated when, “in order to grant the federal plaintiff
the relief sought, the federal court must determine that the state court judgment was erroneously
entered or must take action that would render the judgment ineffectual.” In Re Madera, 586 F.3d
228, 232 (3d Cir. 2009) (quoting FOCUS v. Allegheny Cnty. Court of Common Pleas, 75 F.3d
834, 840 (3d Cir 1996)). Accordingly, a claim is barred by Rooker-Feldman under two
circumstances: (1) “if the federal claim was actually litigated in state court prior to the filing of

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the federal action” or (2) “if the federal claim is inextricably intertwined with the state
adjudication, meaning that federal relief can only be predicated upon a conviction that the state
court was wrong.” In Re Madera, 586 F.3d at 232 (quoting In Re Knapper, 407 F.3d 573, 580
(3d Cir. 2005)).
A federal claim is “inextricable intertwined” with an issue adjudicated by a state court
when (1) the federal court must determine that the state court judgment was erroneously entered
in order to grant the requested relief, or (2) the federal court must take an action that would
negate the state court’s judgment. In Re Madera, 586 F.3d at 232 (quoting In Re Knapper, 407
F.3d at 580). “In the first circumstance … Rooker-Feldman bars the plaintiff’s federal claim
because granting the plaintiff relief would require the federal court to conclude that the State
Court made an incorrect factual or legal determination. In cases falling into this category,
federal relief can only be predicated upon a conviction that the state court was wrong.” Walker
v. Horn, 385 F.3d 321, 330 (3d Cir. 2004) (quoting Desi’s Pizza, Inc. v. City of Wilkes-Barre,
321 F.3d 411, 419 (3d Cir. 2003)). That inquiry requires identifying the pillars on which the
state-court judgment rests, which includes considering questions of state law that the state court
was obligated to reach in order to render its decision. Walker, 385 F.3d at 330 (internal citations
omitted).
For instance, in In Re Madera the Third Circuit affirmed the District Court’s holding that
the claim was inextricably intertwined with the Court of Common Pleas’ foreclosure judgment
because granting rescission would amount to finding that no valid mortgage existed, which
would negate the foreclosure judgment, as a “mortgage foreclosure action depends upon the
existence of a valid mortgage.” 586 F.3d at 232. A plaintiff’s claim may be “inextricably
intertwined” with the state court adjudication where he cannot prevail on his federal court claim

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unless the court “pull[s] the thread that [would] unravel the [ ] fabric of the state court’s order.”
Walker, 385 F.3d at 332.1
In the second situation, “the plaintiff’s federal claim is precluded because the relief
sought would undo or prevent the enforcement of the state court’s order.” Id. Thus, any action
that would prevent a state court from enforcing its orders would negate the state court’s
judgment and preclude jurisdiction under Rooker-Feldman. In Re Knapper, 407 F.3d at 580.
The Third Circuit has explained that Rooker-Feldman divests a court of jurisdiction
where “(1) the federal plaintiff lost in state court; (2) the plaintiff complains of injuries caused 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 judgments. Great
Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010)
(internal quotation marks omitted) (quoting Exxon Mobil, 544 U.S. at 284).
Defendants argue that these four factors are all satisified and the Court cannot retain
jurisdiction in this case. (Defs.’ Br. at 5-6.) The Court agrees that the first and third factors set
forth in Great Western are both met, as final judgment was entered in the Foreclosure Action
against Plaintiff on January 8, 2014, prior to the initiation of this case in federal court. (See
DeFleece Cert., Ex. C.) In several instances, Plaintiff is complaining about the injuries caused
by the state court judgment and requesting this Court, either explicitly or implicitly, to review

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In Walker v. Horn, the state court ordered an injunction authorizing prison officials to force-feed the plaintiff. 385
F.3d at 330. The plaintiff then filed a procedural due process claim in Federal District Court, asserting that there
were inadequate procedural safeguards in place to ensure that the decision to force-deed someone was neither
arbitrary nor erroneous, and that the prison officials ignored those procedural safeguards. Id. at 328. The Third
Circuit agreed that the due process claim was barred by Rooker-Feldman. While the plaintiff’s due process claim
was not a frontal attack on the propriety of the state court order, it “question[ed] the propriety of the state court’s
order.” Id. at 331 (emphasis added). The plaintiff was “clearly claiming that had he been given adequate procedural
due process, the state court would not have entered an erroneous order to force-feed him.” Id. In other words,
prevailing on the procedural due process claim would have required the District Court to pull apart the constitutional
foundation for the state court’s decision, which is barred by Rooker-Feldman. Id.

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and reject the state court’s judgment. These claims are barred by Rooker-Feldman. However,
there are multiple Counts that would not necessarily require this Court to make findings which
would undercut the validity of the state court’s foreclosure judgment, or result in a decision at
odds with the state court’s judgment, should Plaintiff prevail on those claims. Such claims are
not barred by Rooker-Feldman at this time.
In order to address the applicability of the Rooker-Feldman doctrine to Plaintiff’s claims,
the Court will first consider the state court’s judgment in the Foreclosure Action, and what the
state court was required to find in reaching its decision. See Desi’s Pizza, 321 F.3d 421 (citing
Ernst v. Child & Youth Servs., 108 F.3d 486 (3d Cir. 1997)). Then, the Court will consider each
of the counts in Plaintiff’s Complaint in deciding whether they necessarily implicate the state
court’s judgment or its underlying foundation.
(b) The Foreclosure Action
In New Jersey, a foreclosure action requires a court to determine “the validity of the
mortgage and the amount of indebtedness due theron, … and to adjudicate the right to
foreclosure, namely, to resort to the mortgaged lands for satisfaction of the indebtedness.”
Central Penn. Nat’l Bank v. Stonebridge Ltd., 185 N.J. Super. 289 (Ch. Div. 1982) (internal
citations omitted) (citing Fidelity Union Trust Co. v. Guterl, 130 N.J. Eq. 404, 406 (1941),
Montclair Savings Bank v. Sylvester, 122 N.J. Eq. 518, 522 (1937), and Fidelity Union Trust Co.
v. Stengel, 131 N.J. Eq. 393, 396-397 (Ch. 1942)); see also Assocs. Home Equity Servs., Inc. v.
Troup, 343 N.J. Super. 254, 272 (App. Div. 2001) (noting that a foreclosure action “is a quasi in
rem procedure to determine not only the right to foreclose, but also the amount due on the
mortgage.”) (internal citations omitted) (citing Resolution Trust Corp. v. Berman Indus., Inc.,
271 N.J. Super. 56, 62 (Law Div. 1993) and Central Penn. Nat’l Bank, 185 N.J. Super. at 302).

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In the Foreclosure Action the New Jersey Superior Court determined that the mortgage
on the Property, and its assignment to PNMAC, were valid, and that Plaintiff owed PNMAC
$255,435.62 together with interest. (See DeFleece Cert., Ex. C.) The Court also ordered that the
Property be sold at Sheriff’s Sale to satisfy the money due to PNMAC. (Id.) All that was
required for the state court to enter this judgment, after the entry of default, was the submission
of certain proofs pertaining to the mortgage, evidence of indebtedness, assignments, claim of
lien, and any other document upon which PNMAC’s claim was based. See N.J. Stat. § 4:641(d)(4) (stating that a court “may enter final judgment upon proofs as required by R. 4:64-2.”);
see also § 4:64-2(a) (requiring proofs of “the original mortgage, evidence of indebtedness,
assignments, claim of lien, … and any other original document upon which the claim is based”
be submitted along with an affidavit by the moving party to a default judgment motion in a
foreclosure action).
Therefore, this Court finds that the state court determined that the mortgage on the
Property was valid, Plaintiff owed over $250,000.00 on the mortgage, PNMAC was the current
mortgage holder, and PNMAC was entitled to foreclose on the Property based on the monies
owed.
(c) The Complaint
(i) RESPA (Count I)
In Count I Plaintiff claims BANA and Litton violated RESPA, 12 U.S.C. §§ 2601 et seq.,
when they “accepted charges for the rendering of real estate services which were, in fact, charges
other than for services actually performed.” (Compl. ¶ 64 (citing 12 U.S.C. § 2607).) As a result
of this alleged violation of RESPA, Plaintiff seeks “three [ ] times the amount of charges paid by
Plaintiff for ‘settlement services’ pursuant to [§ 2607(d)(2)].” (Compl. ¶ 65.)

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On its face this claim does not appear to run afoul of the Rooker-Feldman doctrine.
Nothing in it suggests that this Court must impeach the final judgment in the Foreclosure Action,
or unravel the thread that supports the state court’s judgment by questioning the validity of the
mortgage or the debt owed. See Walker, 385 F.3d at 332. Accordingly, the Court will deny
Defendants’ Motion with respect to Count I.2
(ii) TILA (Count II)
In Count II Plaintiff alleges several violations of TILA, 15 U.S.C. §§ 1601 et seq.,
including the failure to disclose certain finance charges, improperly calculating the annual
percentage rate, and not “disclos[ing] the true nature of the actual transaction which occurred
once the loan originator acquired the signatures and personal financial information from the
Plaintiff.” (Compl. ¶¶ 67-69a.)3 However, the only remedy Plaintiff seeks for these violations of
TILA is a rescission of the mortgage. (Compl. ¶ 69b.)
Because granting a rescission would “amount to finding that no valid mortgage existed,
which would negate the foreclosure judgment, as a mortgage foreclosure action depends upon
the existence of a valid mortgage,” In re Madera, 586 F.3d at 232 (internal quotation marks
omitted), the Court finds that Count II is barred by Rooker-Feldman. Defendants’ Motion to
Dismiss will be granted as to Count II.
(iii) FCRA (Count III)

In several instances, Plaintiffs’ claims are vague enough, or worded generally enough, that they are not necessarily
barred by Rooker-Feldman upon a reading of the Complaint. The Court notes that neither Defendants nor the Court
are prohibited from raising Rooker-Feldman concerns in the future if it is evident that Plaintiff is merely attempting
to litigate the validity of the mortgage and the state court’s foreclosure judgment during the course of litigating the
remaining claims. Nor is the Court’s decision to deny Defendants’ Motion with respect to these claims an indication
of whether these claims would survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
2

There are two paragraphs in the Complaint numbered “69.” The Court will refer to the first and second of those
paragraphs as “69a” and “69b,” respectively.
3

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Plaintiff alleges Defendants “wrongfully, improperly, and illegally reported negative
information as to the Plaintiff to one or more Credit Reporting Agencies,” in violation of the
FCRA. (Compl. ¶¶ 71-72.) While Plaintiff is not explicit about what actions Defendants took in
violation of the FCRA, he does allege that the negative information reported by Defendants
“included, but was not limited to, an excessive amount of debt through an unconscionable
contract into which Plaintiff was tricked and deceived into signing.” (Id. ¶ 73 (emphasis added).)
Because of Defendants alleged actions, Plaintiff seeks compensatory damages, including
damages for emotional distress and humiliation, damages for negligent non-compliance with the
FCRA, and damages for willful non-compliance with the FCRA. (Id. ¶¶ 75-77.)
Plaintiff’s claim would be barred by Rooker-Feldman to the extent it seeks to recover
damages from Defendants for reporting related to the mortgage on the Property based on the
theory that the mortgage was invalid. However, Plaintiff leaves the door open for other theories
of recovery which do not depend on the Court’s deciding the validity of the mortgage. For this
reason, the Court will deny Defendants’ Motion to Dismiss with respect to Count III.
(iv) Intentional Misrepresentation (Count IV)
Plaintiff’s intentional misrepresentation claim in Count IV avers that Defendants
intentionally concealed material information from Plaintiff before and at the closing of the loan,
prior to and during the foreclosure process, and during the Foreclosure Action. (Id. ¶ 79.)
Defendants also allegedly “misrepresented material information to the Plaintiff with full
knowledge by Defendant that its affirmative representations were false, fraudulent, and
misrepresented the truth at the time said representations were made.” (Id. ¶ 80.) As a result of
these misrepresentations, Plaintiff claims he “suffered damages.” (Id. ¶ 84.)

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Though it again appears Plaintiff may wish to litigate the validity of the mortgage in
Count IV, which he cannot do, the claim itself does not necessitate dismissal under RookerFeldman at this time. Plaintiff may also recover damages for intentional misrepresentation
consistent with the existence of a valid mortgage and the state court’s foreclosure judgment.
Therefore, the Court will deny Defendants’ Motion as it relates to Count IV.
(v) Unjust Enrichment (Count V)
In Count V Plaintiff alleges that Defendants were unjustly enriched by “retain[ing] the
benefits from their actions of charging a higher interest rate, fees, rebates, kickbacks, profits and
gains stemming from actions including, but not limited to, resale of mortgages and notes using
Platiniff’s identity, credit score and reputation without consent,” (id. ¶ 88), and “though receipt
of payments from third parties … stemming from false claims made which are based, at least in
part, upon their claims of ‘ownership’ of the subject loan and the expectations of payments from
the Platiniff under false pretenses.” (Id. ¶ 90.) Plaintiff demands restitution for Defendants in
the form of “actual damages, exemplary damages, and attorney’s fees.” (Id. ¶ 91.)
While Plaintiff’s unjust enrichment claim would be barred to the extent that it is premised
on the mortgage being invalid, Count V does not require the Plaintiff to make such a showing to
prevail. Plaintiff has apparently alleged other conduct on behalf of Defendants which would not
call into question the existence of the mortgage or the basis of the state court’s judgment,
including the conduct of Defendants prior to the settlement of the mortgage. As such, the Court
will deny Defendants’ Motion with respect to Count V.
(vi) Civil Conspiracy (Count VI)
Count VI is another example of vague pleading which survives Defendants’ present Rule
12(b)(1) Motion to Dismiss, but likely would not survive a motion made under Rule 12(b)(6). In

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Count VI, Plaintiff alleges that Defendants agreed amongst themselves to engage in a course of
conduct “designed to further an illegal act or accomplish a legal act by unlawful means, and to
commit one or more overt acts in furtherance of the conspiracy to defraud the Plaintiff.” (Id. ¶
93.) Plaintiff further alleges that, as a result of the actions of defendants he suffered damages
and now seeks “actual, compensatory, and punitive damages.” (Id. ¶¶ 96-97.) Though merely
reciting the elements of a civil conspiracy claim, Plaintiff does not indicate that this claims rests
upon the validity or legality of the mortgage or the state court’s decision to grant PNMAC’s
request for foreclosure.
Because Plaintiff’s ability to prevail on Count VI does not necessarily require the Court
to make any findings or decisions which are barred by Rooker-Feldman, the Court will deny
Defendants’ Motion to Dismiss as to Count VI.
(vii) Wrongful Foreclosure (Count VII)
In Count VII Plaintiff explicitly asks the Court to vacate the final judgment in the
Foreclosure Action, because it was allegedly based on fraud. (Id. ¶ 106.) Plaintiff attacks the
validity of the loan instruments, the authority of PNMAC to institute a foreclosure proceeding,
and the existence of his debt, throughout Count VII. (See id. ¶¶ 99-102.) Not only would a
favorable decision for Plaintiff on Count VII require the Court to find that no valid mortgage
existed, it would also have the effect of overruling the state court’s judgment. For these reasons,
Count VII is barred by the Rooker-Feldman doctrine, and Defendants’ Motion to Dismiss will be
granted for this count.
(viii) Cancellation of the Loan Instruments (Count VIII)
Though Plaintiff does not specifically request that the Court vacate or set aside the state
court’s judgment in Count VIII, he does request that the Court cancel or invalidate all of the prior

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loan-related transactions, including the creation of the mortgage in 2007. (See id. ¶¶ 108-09.)
Plaintiffs’ request for damages in an amount “not less than $1,000,000.00,” (id. ¶ 111.) belies the
fact that this is a claim that actually seeks to annul the mortgage and attack the grounds for the
state court’s judgment in the Foreclosure Action. Because any decision nullifying the mortgage
would have the effect of invalidating the Foreclosure Action, the Court finds that this count is
barred by the Rooker-Feldman doctrine. See In re Madera, 586 F.3d at 232. Accordingly,
Defendants’ Motion to Dismiss will be granted as to Count VIII.
(ix) Quiet Title (Count IX)
Plaintiff’s quiet title claim in Count IX seeks to have the Court declare that title to the
Property is vested in him alone, and Defendants have no right, title, or interest in the property.
(Compl. ¶¶ 119-20.) In support of this relief, Plaintiff notifies the parties that he intends to
rescind the mortgage and loan transaction through service of his Complaint, (id. ¶ 113), and he
alleges that none of Defendants have or had any actual interest in the Property because none of
Defendants ever acquired anything by way of the various assignments of the mortgage and loan.
(Id. ¶¶ 114-18.)
Again, Plaintiff does not overtly ask the Court to vacate the state court’s judgment in the
Foreclosure Action, but it is clear that finding in favor of Plaintiff on Count IX would annul the
mortgage and invalidate the basis of the state court’s decision. Thus, the Court will grant
Defendants’ Motion as to Count IX.

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IV.

CONCLUSION
For the foregoing reasons, the Defendants’ Motion to Dismiss will be GRANTED IN

PART and DENIED IN PART. An appropriate order shall enter today.

Dated:

4/30/2015 __

s/ Robert B. Kugler___
ROBERT B. KUGLER
United States District Judge

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