MCCOY v. MORTGAGE SERVICE CENTER
Filing
33
MEMORANDUM OPINION filed. Signed by Chief Judge Jerome B. Simandle on 9/18/2015. (drw)n.m.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANTONIO MCCOY,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil No. 14-3643 (JBS/AMD)
v.
MORTGAGE SERVICE CENTER
Defendant.
MEMORANDUM OPINION
SIMANDLE, Chief Judge:
This matter comes before the Court on pro se Plaintiff
Antonio McCoy’s Motion to Amend [Docket Item 21] and Motion for
Injunctive Relief [Docket Item 27]. Plaintiff seeks to enjoin
Defendant Mortgage Service Center from foreclosing on the home
he bought with his ex-wife, LaAngela McCoy, asserting that
Defendant’s foreclosure action violates his due process rights.
Because Plaintiff has no right of action under the Fifth
Amendment against Defendant, a private entity, the Court will
deny his motion to amend and motion for injunctive relief. The
Court finds as follow:
1.
Plaintiff filed a Complaint, styled as a Motion for
Injunctive Relief, against Defendant Mortgage Service Center,
also known as PHH Mortgage,1 on June 6, 2014, seeking to prevent
1
Defendant asserts that the correct party name is PHH Mortgage
Corporation, not Mortgage Service Center. (Def. Opp’n to Mot. to
the foreclosure of his home after Plaintiff’s ex-wife defaulted
on a $90,000 mortgage serviced by Defendant. Plaintiff’s exwife, LaAngela McCoy, is the only obligor on the loan.
Plaintiff’s single claim against Defendant is for denial of due
process in violation of the Fifth and Fourteenth Amendments; he
claims that Defendant refused to provide Plaintiff with
information regarding the loan or the foreclosure because he was
not the borrower. (Compl. [Docket Item 1] ¶¶ 11-13.) He seeks an
injunction against foreclosure “until Mortgage Service gives
[Plaintiff] information about the loan of his home so he can
prevent foreclosure.” (Id. ¶ 16.)
2.
Defendant filed an answer on August 7, 2014. On
January 7, 2015, Plaintiff moved to dismiss the Complaint
[Docket Item 17], without objection from Defendant [Docket Item
18], and the Court granted Plaintiff’s motion shortly thereafter
[Docket Item 19]. Approximately one month later and
approximately eight months after the filing of his Complaint,
Plaintiff filed a “Motion to Amend his present motion pending in
this court a motion requesting the court to reinstate his Motion
for Injunctive Relief . . . .” (Mot. to Amend [Docket Item 21]
at 1.) In his Motion to Amend, Plaintiff argues that PHH
Mortgage does not have standing to foreclose on his home because
Amend [Docket Item 25] at 1.) The Court will subsequently refer
to Defendant as “PHH Mortgage.”
2
the mortgage Note identifies Plaintiff’s property as 4813 Ocean
Gateway, Vienna, MD, which Plaintiff claims is a wooded lot
adjacent to Plaintiff’s home, rather than 4807 Ocean Gateway,
which Plaintiff alleges is the actual address for his house. In
support of his argument, Plaintiff attaches a letter from the
Dorchester Planning and Zoning Office stating that the 911
emergency services address for Plaintiff’s home is 4807 Ocean
Gateway. (Mot. to Amend Ex. A.) He asks the Court to “grant his
Motion for Injunctive Relief and any other relief this court
deems just, fair and proper.” (Id. at 3.) Plaintiff additionally
explains in his reply brief to his Motion to Amend that after he
filed his Complaint, the parties entered into a proposed
settlement agreement with certain unspecified terms. Plaintiff
dismissed his Complaint as part of the agreement but was now
moving to reinstate his case because “defendants intentionally
refuse[d] to hold their end of the bargain.” (Reply to Mot. to
Amend [Docket Item 26] at 2.) He also asserts in his reply that
Defendant “induced him into signing the note agreement contract
and other documentation relevant to the loan,” and “made an
untrue statement of fact by placing 4813 Ocean Gateway a wooded
lot as to secure the loan on the note and all other
documentation which induced plaintiff to enter into the loan
contract,” in violation of the Misrepresentation Act of 1967.
(Id. at 3.)
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3.
In June 2015, Plaintiff filed a “Motion Requesting the
Court for an Expeditious Order of Injunctive Relief.” (Mot. for
Inj. Relief [Docket Item 27].) Plaintiff’s motion largely
reiterated the allegations in his Complaint and Motion to Amend,
and again asserted a denial of Plaintiff’s “right to property
and due process of law pursuant to the U.S. Constitution’s Fifth
Amendment.” (Id. ¶ 22.)
4.
The Court will first address Plaintiff’s Motion to
Amend. Federal Rule of Civil Procedure 15(a)(1) permits a
plaintiff to amend his pleading as a matter of right 21 days
after service of the pleading or 21 days after service of a
responsive pleading. Fed. R. Civ. P. 15(a)(1). Because Plaintiff
filed his Amended Complaint six months after Defendants’
Complaint was served on Plaintiff, Plaintiff is not entitled to
amend his Complaint as a matter of course. Instead, Plaintiff is
permitted to amend “only with the opposing party's written
consent or the court's leave.” Fed. R. Civ. P. 15(a)(2).
Although “[t]he court should freely give leave when justice so
requires,” id, the decision to grant leave to amend a complaint
rests within the sound discretion of the trial court. Massarsky
v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983). The
district court may deny leave to amend only if (a) the moving
party's delay in seeking amendment is undue, motivated by bad
faith, or prejudicial to the non-moving party; or (b) the
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amendment would be futile. Adams v. Gould, Inc., 739 F.2d 858,
864 (3d Cir. 1984). “Futility” means that the complaint, as
amended, would fail to state a claim upon which relief could be
granted. Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238,
243 (3d Cir. 2010); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.
2000). In assessing “futility,” the court applies the same
standard of legal sufficiency as applies under Fed. R. Civ. P.
12(b)(6). Shane, 213 F.3d at 115. In other words, the amended
complaint must be dismissed if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that
plaintiff has failed to set forth sufficient facts to state a
claim for relief that is plausible on its face. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007); Fleisher v. Standard Ins.
Co., 679 F.3d 116, 120 (3d Cir. 2012). To determine if a
complaint meets the pleading standard, the Court must strip away
conclusory statements and “look for well-pled factual
allegations, assume their veracity, and then determine whether
they plausibly give rise to an entitlement of relief.” Bistrian
v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (internal quotation
marks omitted).
5.
Plaintiff’s only claim is that Defendant Mortgage
Service Company violated his due process rights under the
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Constitution.2 It is axiomatic that “most rights secured by the
Constitution are protected only against infringements by
governments.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156
(1978). While the Due Process Clause of the Fifth and Fourteenth
Amendments provide protection against unlawful deprivations of
property by the state or federal government, it offers no shield
against “private conduct, ‘however discriminatory or wrongful.’”
Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974) (quoting
Shelley v. Kraemer, 335 U.S. 1, 13 (1948)).
6.
Plaintiff’s Complaint alleges only that Defendant “is
a mortgage company located in Mount Laurel, New Jersey.” (Compl.
¶ 2.) Plaintiff makes no allegations that Defendant is a
government actor or that Defendant acted at the direction of the
state or federal government. Instead, Plaintiff argues that
“[t]he constitution is applicable to all times, all people and
places.” He argues that Defendant “may well not be a state
2
Because the Constitution provides no direct cause of action,
the Court construes Plaintiff’s claim as one under § 1983 or
Bivens. Individuals whose constitutional rights are violated
must bring a case under 42 U.S.C. § 1983 or Bivens. 42 U.S.C. §
1983 provides a cause of action against any “person who, under
color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects,
or causes to be subjected” any person to the deprivation of any
right protected by federal law or the United States
Constitution. While § 1983 provides a cause of action against
individuals acting under color of state authority, Bivens is the
federal equivalent of § 1983, and provides a cause of action
against the federal government.
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actor,” but even so, Defendant “does not have the authority to
deprive plaintiff of his property without due process of law.”
(Reply to Mot. to Amend at 5.)
7.
The Court cannot agree. Although as a factual matter
any entity with sufficient power may deprive a person of his
property, “only a State or a private person whose action ‘may be
fairly treated as that of the state itself’ may deprive him of
‘an interest encompassed within the Fourteenth Amendment’s
protection.’” Id. at 157 (quoting Jackson, 419 U.S. at 349 and
Fuentes v. Shevin, 407 U.S. 67, 84 (1972)); see also Lugar v.
Edmonson Oil Co., Inc., 457 U.S. 922, 924 (1982) (“Because the
[Fourteenth] Amendment is directed at the States, it can be
violated only by conduct that may fairly be characterized as
‘state action.’”). Similarly, the Fifth Amendment’s Due Process
Clause “appl[ies] to and restrict[s] only the Federal Government
and not private persons,” and does not act against a private
company. Pub. Utils. Comm’n of D.C. v. Pollak, 343 U.S. 451, 461
(1952). Because Defendant, a mortgage servicing company, appears
to be a private entity and Plaintiff has not alleged that
Defendant is a state actor or acted with governmental authority,
Plaintiff has no cause of action against Defendant for a
violation of the Due Process Clause.
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8.
Plaintiff’s proposed Amended Complaint3 does not
correct this deficiency. Plaintiff asserts that the address
contained in the mortgage note is not the address for
Plaintiff’s house but rather for a wooded property adjacent to
Plaintiff’s house, and that Defendant therefore has no authority
to foreclose on Plaintiff’s home. The Amended Complaint,
however, does not assert any new causes of action, add state
entities as defendants, or contain new allegations giving rise
to a reasonable inference that Defendant acted at the direction
of the state or federal government.
9.
Nor does Plaintiff’s reply brief to his Motion to
Amend provide any new bases for suit. Plaintiff makes a new
argument in his reply that Defendant “induced” Plaintiff into
entering into a mortgage by misrepresenting in the mortgage note
that the mortgage was for the wooded lot next to Plaintiff’s
home, in violation of the Misrepresentation Act of 1967. The
Misrepresentation Act of 1967, however, is U.K. law and does not
provide a right of action for Plaintiff. See Int’l Fund Mgmt.
S.A. v. Citigroup Inc., 822 F. Supp. 2d 368, 388 (S.D.N.Y. 2011)
(discussing the Misrepresentation Act of 1967 as part of
3
Although Plaintiff did not attach a proposed Amended Complaint
to his Motion to Amend, the motion itself contains additional
allegations and seeks to amend the original Complaint. The Court
therefore construes Plaintiff’s Motion to Amend as a Proposed
Amended Complaint.
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plaintiffs’ U.K. law claims). To the extent Plaintiff asserts a
claim of fraud, Plaintiff must plead those allegations with
particularly pursuant to Fed. R. Civ. P. 9(b). Fraud under Rule
9(b) “requires a plaintiff to plead (1) a specific false
representation of material fact; (2) knowledge by the person who
made it of its falsity; (3) ignorance of its falsity by the
person to whom it was made; (4) the intention that it should be
acted upon; and (5) that the plaintiff acted upon it to his [or
her] damage.” In re Supreme Specialties, Inc. Securities Litig.,
438 F.3d 256, 270 (3d Cir. 2006) (quoting Shapiro v. UJB Fin.
Corp., 964 F.2d 272, 284 (3d Cir. 1992)); see also Banco Popular
N. Am. v. Gandi, 876 A.2d 253, 260 (2005) (reciting elements of
common law fraud).
10.
Nothing in the facts gives rise to a plausible
inference that Defendant knowingly made a material
misrepresentation in the mortgage documents about the property
that is the subject of the mortgage, or that Plaintiff believed
he was executing a mortgage on the wooded lot adjacent to his
house. First, the fact that Plaintiff has a letter from the
County and Board Office identifying the address of his house for
emergency services as 4807 Ocean Gateway rather than 4813 Ocean
Gateway does not by itself create a plausible inference that the
executed mortgage was only for the wooded lot. The Deed of Trust
shows that while the mortgaged property is identified as 4813
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Ocean Gateway in the mortgage documents, that address actually
encompasses two parcels of land, according to the metes and
bounds description referenced in Schedule A. (See Schedule A to
Deed of Trust, Ex. 2 to Def. Opp’n to Mot. to Amend [Docket Item
25-1].) Importantly, Plaintiff does not contest that the metes
and bounds property description is only for the wooded lot.
Moreover, in Plaintiff’s original Complaint, he specifically
acknowledges that the mortgage held by Defendant was a mortgage
on his house, and that the mailing address on the mortgage
documents, 4813 Ocean Gateway, was the “mailing address of
borrower.” (Compl. ¶¶ 6, 10.) In short, Plaintiff has failed to
allege with sufficient specificity pursuant to Fed. R. Civ. P.
9(b) that Defendant falsely represented a material fact upon
which Plaintiff relied when he entered into the mortgage
agreement. Because the Amended Complaint still fails to state a
claim upon which relief may be granted, the Court must
consequently deny Plaintiff’s Motion to Amend.
11.
The Court will also deny the Plaintiff’s Motion for
Injunctive Relief. Plaintiff’s motion largely reiterates the
same facts in his Complaint and Motion to Amend and does not
seek any new relief. Rather, Plaintiff’s motion asks this Court
to “expeditious[ly] rule” on his pending motion and Complaint
“because PHH Mortgage and Jeffrey B. Fisher has filed with the
local court Notice of Foreclosure.” (Mot. for Inj. Relief ¶ 18.)
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To secure the extraordinary relief of a preliminary injunction,
the moving party must demonstrate that (1) he has a likelihood
of success on the merits, (2) he will suffer irreparable harm if
the injunction is denied, (3) granting preliminary relief will
not result in even greater harm to the nonmoving party, and (4)
the public interest favors such relief. Rogers v. Corbett, 468
F.3d 188, 192 (3d Cir. 2006) (internal quotations and citations
omitted). “All four factors should favor preliminary relief
before the injunction will issue.” S & R Corp. v. Jiffy Lube
Intern., Inc., 968 F.2d 371, 375 (3d Cir. 1992). Plaintiff has
not shown that he has satisfied any of these factors, and, as
already explained above, has not demonstrated any plausible
claim for relief.
12.
For the foregoing reasons, the Court will deny
Plaintiff’s Motion to Amend and deny Plaintiff’s Motion for
Injunctive Relief. An accompanying order will be entered.
September 18, 2015
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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