WALKER v. CARRINGTON MORTGAGE SERVICES LLC et al

Filing 16

OPINION. Signed by Judge Noel L. Hillman on 5/8/2017. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DEANE V. WALKER,
1:16-cv-08330-NLH-AMD
Plaintiff,
OPINION
v.
CARRINGTON MORTGAGE SERVICES
LLC, BANK OF AMERICA NA,
PARKER MCCAY PA,
Defendants.

APPEARANCES:
DEANE V. WALKER
5 MILLARD AVENUE
EGG HARBOR TOWNSHIP, NJ 08234
Appearing pro se
SANDHYA M. FELTES
KAPLIN, STEWART, MELOFF, REITER & STEIN, PC
UNION MEETING CORPORATE CENTER
910 HARVEST DRIVE
BLUE BELL, PA 19422-0765
On behalf of Defendants Carrington Mortgage Services LLC
and Bank Of America NA
ANDREW CHRISTOPHER SAYLES
STEVEN AARON KROLL
OMAR D. ARNOUK
CONNELL FOLEY LLP
85 LIVINGSTON AVENUE
ROSELAND, NJ 07068
On behalf of Defendant Parker McCay PA

HILLMAN, District Judge
This matter that concerns Plaintiff’s claims that
Defendants violated her rights under the Equal Credit
Opportunity Act, 15 U.S.C. § 1691 et seq., and the federal Fair

Housing Act, 42 U.S.C. 3601, et seq., by failing to help her
participate in a mortgage modification program.

Presently

before the Court are the motions of Defendants to dismiss
Plaintiff’s claims against them.

For the reasons expressed

below, Defendants’ motions will be granted.
BACKGROUND
According to her complaint, Plaintiff, Deane V. Walker,
obtained a mortgage from Defendant Bank of America, NA for her
home in Egg Harbor Township, New Jersey, and the loan was
serviced by Defendant Carrington Mortgage Services LLC.
Plaintiff claims that she had some set-backs in life, including
suffering from breast cancer, and she fell behind on her
mortgage payments.

Plaintiff claims that she informed

Defendants about her troubles and requested to participate in a
mortgage modification program funded by the federal government
so that she could keep her home.

Plaintiff claims that instead

of assisting her with the mortgage modification process,
Defendants stalled in order to foreclose on Plaintiff because
her default was more financially advantageous to Defendants than
a mortgage modification.
Plaintiff further alleges that when Bank of America brought
a foreclosure action against her in New Jersey state court, Bank
of America’s lawyers, Defendant Parker McCay, did not follow the
judge’s request that Plaintiff be allowed to properly apply for
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a mortgage modification.

Plaintiff also alleges that Parker

McCay ignored the state court judge’s order and proceeded to
file a motion to strike Plaintiff’s answer and counterclaim in
the foreclosure action, which was granted by a judge different
from the one assigned to her case.
Based on Defendants’ actions, Plaintiff claims that she
made a desperate and irrational decision to list her house as a
short-sale.

Plaintiff also claims that Defendants’ actions

violated the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. §
1691 et seq., and the federal Fair Housing Act (“FHA”), 42
U.S.C. 3601, et seq., because they discriminated against her in
their actions to preclude her from obtaining a loan
modification.

Plaintiff seeks damages in the amount of $1

million, the dismissal of the mortgage lien on her property, and
the invalidation of the short-sale contract.
Defendants have moved to dismiss Plaintiff’s complaint,
arguing that her claims fail as a matter of law.

Plaintiff has

opposed the motions. 1

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After Plaintiff filed her opposition to the motion to dismiss
filed by Carrington Mortgage Services and Bank of America,
Parker McCay filed a motion to dismiss. Plaintiff did not file
an opposition to Parker McCay’s motion, but the Court will
consider Plaintiff’s brief as an opposition to both motions.
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DISCUSSION
A.

Subject matter jurisdiction

Defendants removed Plaintiff’s complaint from New Jersey
state court to this Court, which has jurisdiction over
Plaintiff’s federal claims under 28 U.S.C. § 1331.
B.

Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under the

liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).

Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal

Rules of Civil Procedure do not require a claimant to set forth
an intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”

Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
4

147, 149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’”

Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)

(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6).

First, the factual and legal elements of a claim

should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
legal conclusions.
S. Ct. at 1950).

Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, a district court must then determine

whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “‘plausible claim for relief.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950).

A complaint must do

more than allege the plaintiff's entitlement to relief.

Id.;

see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
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Cir. 2008) (stating that the “Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.

This

‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element”).

A court need not credit either “bald

assertions” or “legal conclusions” in a complaint when deciding
a motion to dismiss.

In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410, 1429-30 (3d Cir. 1997).

The defendant bears the

burden of showing that no claim has been presented.

Hedges v.

U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).

A court may consider,

however, “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.”

Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).

If any other matters outside the pleadings are presented
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to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
C.

Fed. R. Civ. P. 12(b).

Analysis

Under the ECOA, a creditor may not discriminate against any
applicant on the basis of national origin, and the FHA prohibits
lenders from refusing “to sell or rent ... or otherwise make
unavailable or deny, a dwelling to any person because of ...
national origin.”

Shahin v. PNC Bank, 625 F. App’x 68, 70 (3d

Cir. 2015) (citing 15 U.S.C. § 1691(a); 42 U.S.C. § 3604(a)).
To establish a prima facie case under the ECOA, a plaintiff
must show that (1) she was a member of a protected class; (2)
she applied for credit from defendants; (3) she was qualified
for the credit; and (4) despite qualification, she was denied
credit.

Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 268

n.5 (3d Cir. 2010) (citation omitted).

To establish a violation

of the FHA, a plaintiff must show that the challenged actions
were either (i) motivated by intentional discrimination or (ii)
resulted in a discriminatory effect, even absent evidence of a
discriminatory motive.

Wright v. Castle Point Mortg., 2006 WL

1468678, at *3–4 (D.N.J. 2006) (citing Eastampton Center, L.L.C.
v. Township of Eastampton, 155 F. Supp. 2d 102, 111 (D.N.J.
2001) (internal citations omitted)).
The primary failure of Plaintiff’s ECOA and FHA claims is
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that she does not identify herself as a member of a protected
class.

In her opposition brief, Plaintiff argues that

Defendants know that she is African American because her loan
documents contain that information, and she should not have to
allege her race in her complaint because it is a matter of fact
and record.
Unfortunately, Plaintiff’s position is contrary to the law.
Even though pro se complaints, “however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers,” Estelle v. Gamble, 429 U.S. 97, 107 (1976),
pro se litigants “must still plead the essential elements of
[their] claim and [are] not excused from conforming to the
standard rules of civil procedure,” McNeil v. United States, 508
U.S. 106, 113 (1993) (“[W]e have never suggested that procedural
rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel. . .
.”).

Thus, in order to survive dismissal, Plaintiff is required

to plead facts – including her race - to support the basic
elements of her claims.
Even if the Court permitted Plaintiff to amend her
complaint to plead her race, it still fails for other reasons.
Plaintiff’s ECOA claims fail because Carrington Mortgage
Services and Parker McCay are not creditors.

Plaintiffs’ ECOA

claims fail as to all Defendants because Plaintiff has not
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pleaded facts to evidence that she submitted the proper
application for a mortgage modification, that she was qualified
for a mortgage modification, or that she was actually denied a
mortgage modification.

Plaintiff’s FHA claims fail because she

has not alleged any facts to suggest that Defendants acted with
discriminatory intent or their actions had a discriminatory
effect based on her national origin relating to the issuing,
servicing, and foreclosing of her mortgage.
Even though “a discrimination complaint need not allege
facts establishing each element of a prima facie case of
discrimination to survive a motion to dismiss,

. . .

it must

at a minimum assert nonconclusory factual matter sufficient to
nudge its claims across the line from conceivable to plausible
to proceed.”

Shahin, 625 F. App’x at 70 (quotations and

citations omitted).

The lack of facts in Plaintiff’s complaint

depicting how race discrimination motivated Defendants’ actions
causes Plaintiff’s complaint to fall far from the plausible-toproceed line.
Third Circuit case law “supports the notion that in civil
rights cases district courts must offer amendment – irrespective
of whether it is requested – when dismissing a case for failure
to state a claim unless doing so would be inequitable or
futile.”

Fletcher-Harlee Corp. v. Pote Concrete Contractors,

Inc., 482 F.3d 247, 251 (3d Cir. 2007).
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Although Plaintiff has

attempted to bring a discrimination case, Plaintiff’s claims in
her complaint, as well as her submissions to the Court, suggest
that her concerns over how the “big banks” mistreat consumers
and how the attorneys in foreclosure proceeding mislead judges
sound in areas of the law other than the laws redressing civil
rights violations.

Indeed, no facts alleged even suggest

discrimination of any kind and plaintiff has asserted several
times that pleading her status as a member of a protected class
should not be required.

Under the circumstances, the Court will

not sua sponte grant leave to file an amended complaint in an
effort to cure her pleading deficiencies because doing so would
be futile.
Consequently, for the foregoing reasons, the Court finds
that Plaintiff’s complaint fails to state viable claims against
Defendants for violations of the ECOA and FHA, and Defendants’
motions to dismiss must be granted.

An appropriate Order will

be entered.

Date:
May 8, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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