HUA v. PHH MORTGAGE et al

Filing 23

OPINION. Signed by Chief Judge Jerome B. Simandle on 9/29/2015. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE

TRACY HUA,
Plaintiff,

Civil No. 14-7821 (JBS/AMD)
v.
PHH MORTGAGE and PHELAN
HALLINAN & DIAMOND

OPINION

Defendants.

APPEARANCES:
Ms. Tracy Hua
6 Jewel Road
West Windsor, NJ 08550
Pro Se
Daniel J.T. McKenna, Esq.
BALLARD SPAHR, LLP
210 Lake East Drive, Suite 200
Cherry Hill, NJ 08002
Attorney for Defendant PHH Mortgage
Vladimir Velasco Palma, Esq.
PHELAN HALLINAN & SCHMIEG PC
400 Fellowship Road, Suite 1100
Mt. Laurel, NJ 08054
Attorney for Defendant Phelan Hallinan & Diamond
SIMANDLE, Chief Judge:
I.

INTRODUCTION
After Plaintiff Tracy Hua defaulted in May of 2011 on three

loans secured against three properties she owned in New Jersey,
Defendant PHH Mortgage ("PHH"), through its counsel, Phelan
Hallinan & Diamond, also known as Phelan Hallinan Diamond &
Jones, PC ("PHDJ"), initiated foreclosure actions in state court
against each property. Plaintiff contested each foreclosure,
alleging that PHH was not the owner of the mortgage and lacked

standing to foreclose. The court, however, granted summary
judgment in favor of PHH in each case, finding that PHH was
entitled to the amount claimed and had the right to foreclose on
the mortgage. Plaintiff, who is pro se, now brings this suit
against PHH Mortgage and its counsel, PHJD, alleging that
Defendants attempted to collect debt in a deceptive and abusive
manner and without legitimate cause, in violation of various
provisions of the Fair Debt Collection Practices Act.
Presently before the Court are Motions to Dismiss by Phelan
Hallinan & Diamond [Docket Item 12] and PHH Mortgage [Docket Item
13], and Plaintiff's Motion to Amend her Complaint. Because
Plaintiff's FDCPA claims are barred by the statute of limitations
and New Jersey's entire controversy doctrine, and amendment would
be futile, the Court will grant Defendants' motions and deny
Plaintiff's Motion to Amend.
II.

BACKGROUND
A.

Background1

In July and December of 2003, Plaintiff Tracy Hua and Chi
Hung Mu, who is not named as a plaintiff in this action, executed
1

The facts alleged are drawn from Plaintiff's Amended
Complaint, from public court documents, and from undisputedly
authentic documents upon which Plaintiff explicitly relies in her
Complaint. See In re Rockefeller Ctr. Props., Inc., Sec. Litig.,
184 F.3d 280, 287 (3d Cir. 1999). Because Plaintiff’s Complaint
is predicated upon the mortgage documents, correspondence between
Defendants and Plaintiff regarding the mortgage, and the
foreclosure actions in state court, documents related to these
matters submitted by both Plaintiff and Defendants will be
considered in connection with the pending motions to dismiss.
Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993)) (“[A] court may consider an
undisputedly authentic document that a defendant attaches as an
exhibit to a motion to dismiss if the plaintiff’s claims are
based on the document.”). For purposes of these motions, the
Court must accept Plaintiffs’ allegations as true.
2

mortgages on three properties in Trenton, New Jersey: the first,
located at 60 Hancock Street was in the amount of $48,217.00; the
second, at 102 Hancock Street, was in the amount of $56,810.00;
and the third, at 3 Elm Street, was in the amount of $65,550.00.
(Mortgage contracts, Ex. A to PHH Mot. to Dismiss [Docket Item
13-4]). The lender of all three mortgages was Fleet National
Bank. (Id.) Plaintiff signed a "Family Rider" with the properties
at 60 Hancock Street and a "Second Home Rider" with the other two
properties. (Id.)
All three loans went into default in May of 2011. (Compl.
[Docket Item 1] ¶¶ 9, 21, 32.) In June and August of 2011,
Plaintiff received formal Notices of Intention to Foreclose on
all three properties. The notices informed Plaintiff that she was
in default of her loan and that if she did not cure the default
within thirty days, "payment of the current principal balance
will be accelerated and foreclosure proceedings will be initiated
which will cause you to lose your home." (Exs. D, O, & W to PHDJ
Mot. to Dismiss [Docket Items 12-1, 12-2, 12-3]) (emphasis
added). Plaintiff alleges that she never received notice from
Defendants that the three loans were accelerated, and also that
Defendants never actually accelerated her debt. (Compl. ¶ 12
("Upon information and belief no action or notice to accelerate
was ever taken by defendant 2 and maturity expired to accelerate
August 7 2011."); ¶ 25 ("defendant 1 initiated state debt

3

collection action against plaintiff requesting erroneous fees and
charges without accelerating the alleged debt in question."); ¶
34 ("Upon information and belief defendants never accelerated
alleged debt and the action to accelerate matured.")).
In August and September of 2011, Fleet National Bank
assigned Plaintiff's three mortgages to PHH. (Ex. B to PHH Mot.
to Dismiss.) Less than a year later, in May, June, and July of
2012, PHH, through its legal counsel PHDJ, initiated foreclosure
proceedings for each property. The cases were filed in the
Superior Court of New Jersey, Chancery Division, Mercer County.
Compl., PHH Mort. Corp. v. Hua, F-013693-12 (N.J. Super. Ct.
Chanc. Div. July 9, 2012); Compl., PHH Mort. Corp. v. Hua,
F-010614-12 (N.J. Super. Ct. Chanc. Div. May 31, 2012); PHH
Mortg. Corp. v. Hua, F-010499-12 (N.J. Super. Ct. Chanc. Div.
June 1, 2012). (Exs. E, P, & X to PHDJ Mot. to Dismiss.)
Plaintiff, through legal counsel Robert C. Leite, Esq.,
filed Answers in each case, alleging that PHH did not hold the
mortgage on Plaintiff's property and did not have standing to
foreclose. (Exs. F, Q, & Y to PHDJ Mot. to Dismiss.) PHH then
moved for summary judgment, which Plaintiff did not oppose, and
the court granted summary judgment in each case. (Palma Cert. to
PHDJ Mot. to Dismiss [Docket Item 12] ¶¶ 8, 20, & 29; see, e.g.,
Ex. H to PHJD Mot. to Dismiss.) The court entered final judgment
for one of the three properties, 102 Hancock Street, on February

4

4, 2014, ordering the sale of the property. (Ex. J to PHJD Mot.
to Dismiss.)
Plaintiff filed the Complaint in the instant case in
December of 2014, alleging that Defendants PHH and PHJD violated
various provisions of the Fair Debt Collection Practices Act
("FDCPA").2 She complains that she is "without knowledge of the
alleged debt defendants purport to claim is owed" because
Defendants are not the valid holders of the debt (Compl. ¶ 5),
that Defendants falsely claimed that they were creditors as
opposed to debt collectors (id. ¶ 64), that Defendants
misrepresented the amount and legal status of the debt and
attempted to collect unauthorized fees (id. ¶¶ 16-17, 25, 39, 45)
and that Defendants never sent Plaintiff notice requesting
payment of the debt in full, nor provided proof of the debt (id.
¶¶ 12, 24, 34, 47, 57). Plaintiff alleges violations of 15 U.S.C.
§ 1692g(b) (validation of debts) (Count One); 15 U.S.C. §
1692e(2), (10), & (12) (use of false, deceptive, or misleading
representations in debt collection) (Counts Two, Four, and Six);
15 U.S.C. § 1692f(1) (unfair means to collect debt) (Count

2

Plaintiff has also filed such suits against various
lenders alleging violations of the FDCPA. See Hua v. Nationstar
Mortgage LLC, No. 14-7801 (D.N.J.); Hua v. Deutsche Bank Nat’l
Trust Co., No. 14-6766 (E.D. Pa.); Hua v. US Bank Nat’l Ass’n,
14-6767 (E.D. Pa.); Hua v. Deutsche Bank Nat’l, No. 13-5564 (E.D.
Pa.); Hua v. JP Morgan Chase Bank NA, 14-2089 (M.D. Fla.).
5

Three); and 15 U.S.C. § 1692j (furnishing deceptive forms) (Count
Five).
Defendants PHH and PHDJ have both moved to dismiss the
Complaint, arguing that Plaintiff's claims are barred by the
FDCPA's one-year statute of limitations; the Rooker-Feldman
doctrine; New Jersey's entire controversy doctrine; and the
litigation privilege. They argue that Plaintiff has failed to
state a claim upon which relief may be granted, and PHH argues
that it is not a debt collector under the FDCPA and Plaintiff's
loans do not involve consumer debt. Plaintiff opposed both
motions. She filed a Motion to Amend on March 20, 2015, 35 days
after PHDJ filed its Motion to Dismiss and 29 days after PHH
filed its Motion to Dismiss, but did not attach a Proposed
Amended Complaint.
III. STANDARD OF REVIEW
When considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted under Fed. R. Civ.
P. 12(b)(6), a court must accept as true all well-pleaded
allegations in the complaint and draw all reasonable inferences
in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89,
93-94 (2007) (per curiam).
A motion to dismiss may be granted only if a court concludes
that the plaintiff has failed to set forth fair notice of what
the claim is and the grounds upon which it rests that make such a

6

claim plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Although the court must accept as true all well-pleaded
factual allegations, it may disregard any legal conclusions in
the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d
Cir. 2009). A plaintiff must plead sufficient facts to "raise a
reasonable expectation that discovery will reveal evidence of the
necessary element," Twombly, 550 U.S. at 556, and "[a] pleading
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do." Iqbal, 556 U.S.
at 678.
The Court exercises subject matter jurisdiction over
Plaintiff's FDCPA claims pursuant to 28 U.S.C. § 1331.
IV. DISCUSSION
A.

The Fair Debt Collection Practices Act (FDCPA)

The Fair Debt Collection Practices Act (FDCPA) was enacted
in 1977 to protect consumers from the "use of abusive, deceptive,
and unfair debt collection practices by many debt collectors," 15
U.S.C. § 1692(a), and provides consumers with a private cause of
action against debt collectors who fail to comply with the Act.
15 U.S.C. § 1692k. Although the Act applies only to debt
collectors, attorneys who regularly engage in debt collection
activity, even when that activity consists of litigation, fall
within the FDCPA. Heintz v. Jenkins, 514 U.S. 291, 299 (1995).

7

A debt collector violates the FDCPA if he or she "use[s] any
false, deceptive, or misleading representation or means in
connection with the collection of any debt." 15 U.S.C. § 1692e.
Prohibited practices include falsely representing the character,
amount, or legal status of a debt, id. § 1692e(2)(A), using false
representations or deceptive means to collect a debt, id. §
1692e(10), and falsely representing that accounts have been
turned over to innocent purchasers for value, id. § 1692e(12). A
debt collector also may not attempt to collect any amount that is
not expressly authorized by the agreement created by the debt, 15
U.S.C. § 1692f(1), nor furnish any forms creating a false belief
that a person other than the creditor is attempting to collect
the debt, when no such person is participating. 15 U.S.C. §
1692j. The debt collector must provide verification of the debt
if the consumer disputes the validity of the debt in writing. 15
U.S.C. § 1692g(b).
B.

Plaintiff's claims are barred by the FDCPA's statute of
limitations.

Section 1692k(d) of the FDCPA provides that an "action to
enforce any liability created by [the FDCPA] may be brought . . .
within one year from the date on which the violation occurs." 15
U.S.C. § 1692k(d). An alleged violation arising out of a lawsuit
filed to collect on a debt occurs either on the date the lawsuit
is filed, Naas v. Stolman, 130 F.3d 892, 893 (9th Cir.1997), or

8

on the date that the complaint is served upon the plaintiff,
Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002).
Here, the alleged FDCPA violations that form the basis of
Plaintiff's case all occurred more than one year before Plaintiff
filed suit in December of 2014. Plaintiff alleges that PHH
violated § 1692g the FDCPA when it first began to send Plaintiff
notices, because it was not authorized to do so and also failed
to provide proof that it validly held Plaintiff's debt. 15 U.S.C.
§ 1692g states clearly that a validation notice must accompany or
follow a debt collector's "initial communication" with a
consumer. Even assuming that Plaintiff's Complaint makes out a
violation of § 1692g, the communication should have occurred in
the summer of 2011 shortly after Plaintiff defaulted on her
mortgages, three years before this action was filed. See Peterson
v. Portfolio Recovery Assocs. LLC, 430 Fed. App'x 112, 114-15 (3d
Cir. 2011) (holding that, with respect to a violation of § 1692g,
the statute of limitations should begin to run on the date notice
should have been provided following the debt collector's "initial
communication" with the debtor).
Plaintiff also alleges that PHH never accelerated the debt
and never sent a notice "requesting payment in full" before
seeking foreclosure. In essence, Plaintiff challenges the
sufficiency of Defendants' initial notice of default and
foreclosure, which Defendants sent to Plaintiffs in May of 2011.

9

To the extent these allegations make out a violation of the
FDCPA, they are also time-barred.
Finally, Plaintiff complains that the content of the
collection letters violated the FDCPA. She alleges generally that
the collection statements she received included unauthorized fees
and charges and contained deceptive representations about whether
PHH was a creditor or debt collector, in violation of various
provisions of § 1692e, § 1692f, and § 1692j. Again, these alleged
violations occurred well before December of 2013. Plaintiff
defaulted on her debt in May of 2011. Although Plaintiff's
Complaint contains very few specifics regarding the deceptive
collection statements, she does include two dates. First, she
states that Defendant PHH requested "erroneous amounts owed
including default interest and fees not authorized" back in
August 2011 with respect to the property at 3 Elm Street. (Compl.
¶ 39.) Plaintiff therefore appears to allege that the violations
began with the Notices of Intent to Foreclose, which were filed
in June and August of 2011 for each of the three properties, over
three years before Plaintiff filed suit in this Court.3 She also
alleges that Defendants "initiated state debt collection action
against plaintiff requesting erroneous fees and charges" "[o]n or
about July 9th 2012." (Compl. ¶ 25.) In other words, she appears
3

The Notices stated that PHH held the first purchase money
mortgage on Plaintiff’s property, included the total amount due,
and informed Plaintiff that her debt would be accelerated if
payment was not received within 30 days.
10

to allege that the deceptive representations were also contained
in Defendants' complaints seeking foreclosure, which were filed
in the summer of 2012. None of the alleged conduct falls within
the one-year statute of limitations.
Plaintiff's assertion that Defendants sent inaccurate
financial statements as late as November of 2014 does not alter
the statute of limitations analysis. The letters, attached to
Plaintiff's Complaint, are actually monthly mortgage statements
summarizing Plaintiff's account information and the debt that
remains outstanding in her accounts. (Exs. B, E, & F to Compl.)
Plaintiff has not pled with any specificity why the mortgage
statements are inaccurate, or where the erroneous fees appear in
the statement. Moreover, the letters concern an existing debt,
the amount of which, according to Plaintiff herself, has been
inaccurate since at least 2011 or 2012. "‘New communications . .
. concerning an old claim . . . [d]o not start a new period of
limitations.'" Parker v. Pressler & Pressler, LLP, 650 F. Supp.
2d 326, 341 (D.N.J. 2009) (quoting Campos v. Brooksbank, 120 F.
Supp. 2d 1271, 1274 (D.N.M. 2000)). The mortgage statements do
not appear to contain new or additional erroneous charges, and do
not constitute a new claim under the FDCPA which falls within the
one-year statute of limitations. See Nutter v. Messerli & Kramer,
P.A., 500 F. Supp. 2d 1219, 1223 (D. Minn. 2007) (finding
plaintiff's FDCPA claim barred by the statute of limitations

11

because bank statements that merely state the status of
plaintiff's outstanding debt are "new communications concerning
an old claim" and therefore relate back to the existence of the
old debt).4
The Court will therefore grant Defendant's motion and
dismiss Plaintiff's claims under the FDCPA.
C.

Plaintiff's claims are also barred by the New Jersey
Entire Controversy Doctrine

Although Plaintiff's claims are time-barred and must be
dismissed, the Court additionally notes that New Jersey's entire
controversy doctrine precludes this Court from considering
Plaintiff's case.
The entire controversy doctrine, codified in Rule 4:30A of
the New Jersey Court Rules, "embodies the principle that the
adjudication of a legal controversy should occur in one
litigation in only one court . . . ." Cogdell v. Hosp. Ctr. at
Orange, 560 A.2d 1169, 1172 (N.J. 1989).5 The doctrine requires
4

Plaintiff made the same argument in another case in this
district, and it was recently rejected by the court. See Op. on
Mot. to Dismiss [Docket Item 17], at *5-6, Hua v. Nationstar
Mortgage LLC, No. 14-7801 (D.N.J. June 22, 2015) (finding
plaintiff’s FDCPA claims time-barred where the claims were based
upon a dunning notice received well over a year before plaintiff
filed her complaint, and rejecting the argument that defendant’s
application for final judgment in state foreclosure action
restarted the statute of limitations, because “the new
communication was for the old claim, not a new claim.”).
5

Rule 4:30A of the New Jersey Rules of Civil Procedure,
provides that “[n]on-joinder of claims required to be joined by
the entire controversy doctrine shall result in the preclusion of
omitted claims to the extent required by the entire controversy
doctrine . . . .” N.J. Ct. R. 4:30A.
12

litigants to assert all affirmative claims relating to the
controversy between them in one action, and to join all parties
with a material interest in the controversy, or be forever barred
from bringing a subsequent action involving the same underlying
facts. See Paramount Aviation Corp. v. Agusta, 178 F.3d 132 (3d
Cir. 1999) (New Jersey's entire controversy doctrine "requires
adversaries to join all possible claims stemming from an event or
series of events in one suit."). The doctrine applies in federal
courts where there was a previous state-court action involving
the same transaction. See Rycoline Prods., Inc. v. C & W
Unlimited, 109 F.3d 883, 887 (3d Cir. 1997).6
The entire controversy doctrine applies to foreclosure
proceedings, but extends only to "germane" counterclaims. N.J.
Ct. R. 4:64-5 ("Only germane counterclaims and cross-claims may
be pleaded in foreclosure actions without leave of court."); see
also In re Mullarkey, 536 F.3d 215, 228 (3d Cir. 2008). For
example, courts in this district have held that a plaintiff's
dispute over foreclosure fees arising out of a mortgage
transaction which is the subject of the foreclosure action is
"germane," and the claim must be asserted in the foreclosure

6

The Third Circuit has described the New Jersey entire
controversy doctrine as an “idiosyncratic” form of claim
preclusion with a slightly broader scope, but the same basic
elements as traditional claim preclusion. See Rycoline Prods.,
Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997).
13

action. See Oliver v. Am. Home Mortg. Servicing, Inc., No.
09-0001, 2009 WL 4129043, at *4 (D.N.J. Nov. 19, 2009).
Plaintiff's FDCPA claims are barred by the entire
controversy doctrine.7 The thrust of Plaintiff's complaint is
that Defendants never accelerated Plaintiff's mortgage, failed to
provide proper notice of acceleration, was not authorized to
foreclose because the debt was not validly assigned to them, and
sought unauthorized fees in the foreclosure. In other words,
these claims go to whether Defendants had the right to foreclose
on Plaintiff's debt, and if so, the amount of money owed, and as
such, were highly germane to the foreclosure actions in state
court. See Patrick v. Am.'s Serv. Co., No. 14-6563, 2015 WL
175967, at *3 (D.N.J. Apr. 17, 2005) (finding plaintiff's claims
germane to state foreclosure proceedings because they were all
premised on the allegation that Defendant unlawfully interfered
with plaintiff's property interest in his home); Venner v. Bank
of Am., No. 07-4040, 2009 WL 1416043, at *3 (D.N.J. May 19, 2009)
(plaintiff's FDCPA claims were germane to the foreclosure action
because they were based on the same alleged transaction).8

7

Because summary judgment has been entered in favor of PHH
Mortgage in all three properties, the Court finds the use of the
entire controversy doctrine, which applies to final judgments,
appropriate under these circumstances.
8
Indeed, in the Answers filed in the foreclosure actions,
Plaintiff had already asserted that Defendant failed to execute a
valid assignment of the mortgage and was without standing to sue.

14

Moreover, the determinative consideration is whether the
claims "arise from related facts or the same transaction or a
series of transactions," Fields v. Thompson Printing Co., 363
F.3d 259, 265 (3d Cir. 2004) (citation omitted), and here, the
dispute surrounding the validity of the foreclosures arise out
the same facts and the same transactions as the state court
claims. It is of no moment that Plaintiff now asserts a different
set of claims under a new theory that Defendants engaged in
deceptive and unfair debt collection practices. A controversy
arising from a "core set of related factual circumstances" may
contain different claims against different parties, but "[i]t is
this commonality of facts, rather than the commonality of issues,
parties or remedies that defines the scope of the controversy and
implicates . . . the entire controversy doctrine." DiTrolio v.
Antiles, 662 A.2d 494, 504 (N.J. 1995). The facts pertinent to
this action, namely, Defendants' conduct in providing notice and
seeking foreclosure, as well as Defendant's right to foreclose on
plaintiff's three properties, arise directly out of the
foreclosure of plaintiff's three properties, and are therefore
part of that same controversy.
Thus, in addition to being barred by the FDCPA's statute of
limitations, Plaintiff's claims are also barred by the New Jersey
entire controversy doctrine. See Op. on Mot. to Dismiss [Docket
Item 17], at *6-7, Hua v. Nationstar Mortgage LLC, No. 14-7801

15

(D.N.J. June 22, 2015) (finding plaintiffs' FDCPA claims barred
by the New Jersey entire controversy doctrine because they could
have been asserted in the contested foreclosure case rather than
in a separate action).9

9

PHH also argues that Plaintiff’s case is barred by the
Rooker-Feldman doctrine. The Rooker–Feldman doctrine “prevents
the lower federal courts from exercising jurisdiction over cases
brought by state-court losers challenging state-court judgments
rendered before the district court proceedings commenced.” Lance
v. Dennis, 546 U.S. 459, 460 (2006) (quotations omitted).
District courts are prohibited from reviewing proceedings
“already conducted by the ‘lower’ tribunal to determine whether
it reached its result in accordance with law.” Great W. Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 169 (3d Cir.
2010) (quotations and citation omitted). The doctrine therefore
applies in limited circumstances, where a party in effect seeks
to take an appeal of an unfavorable state-court decision to a
lower federal court.” Lance, 546 U.S. at 466 (citation omitted).
It has four requirements: “(1) the federal plaintiff lost in
state court; (2) the plaintiff complain[s] 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 W. Mining, 615 F.3d at 166 (quotation omitted).
Plaintiff instituted this action in federal court after
summary judgment was granted in all three foreclosure actions in
state court. Her claims are barred by the Rooker-Feldman doctrine
only to the extent that she seeks review of the foreclosure
decision itself. Thus, Plaintiff’s claims that PHH does not
validly hold her debt cannot be decided by this Court, because
that claim directly challenges the underlying adverse state court
finding that PHH had the right to foreclose on Plaintiff’s
properties. In addition to challenging whether PHH was validly
assigned Plaintiff’s mortgage, however, Plaintiff challenges the
methods and means employed by Defendants to collect Plaintiff’s
debt. Because those claims were not before the state court, they
are not barred by Rooker-Feldman. See Conklin v. Anthou, 495 Fed.
App’x 257, 262 (3d Cir. 2012) (plaintiff was barred by RookerFeldman from challenging adverse state-court mortgage judgment in
federal court but was not barred from alleging that the methods
and evidence employed during the foreclosure were the product of
fraud or conspiracy); Giles v. Phelan, Hallinan & Schmieg, LLP,
901 F. Supp. 2d 509, 521-22 (D.N.J. 2012) (state foreclosure
judgments did not bar plaintiff from bringing suit in federal
court to challenge defendant’s fraudulent practices in
prosecuting foreclosure actions).
16

IV. CONCLUSION
For the foregoing reasons, the Court will grant the motions
to dismiss by PHDJ and PHH Mortgage. In addition, Plaintiff's
Motion to Amend will be denied. Because Plaintiff's claims have
already expired under the FDCPA's statute of limitations, any
amendment of Plaintiff's Complaint would be futile.10 The
accompanying Order will be entered.

September 29, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

10

Federal Rule of Civil Procedure 15(a)(1) permits a
plaintiff to amend her 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 her more than 21 days after service of Defendants’ Motions
to Dismiss, she is not entitled to amend her Complaint as a
matter of course, and amendment is permitted “only with the
opposing party's written consent or the court's leave.” Fed. R.
Civ. P. 15(a)(2). The court may deny leave to amend if the
amendment would be futile, meaning 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). Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984). 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.
17