ABUCAY et al v. HOMEEQ SERVICING et al

Filing 23

OPINION. Signed by Judge Dennis M. Cavanaugh on 7/30/2012. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
LEAH and ALLAN ABUCAY, CIRO and :
FRANCA CONTI, CONDIONESTO and :
:
CARMENCITA TIROL,
:
:
Plaintiffs,
:
:
v.
:
HOMEEQ SERVICING, JOHN DOE 1- :
:
10,
:
:
Defendants.

Hon. Dennis M. Cavanaugh

OPINION
Civil Action No. 11-CV-05539 (DMC)(JAD)

DENNIS M. CAVANAUGH, U.S.D.J.
This matter comes before the Court upon motion by Defendant HomeEq Servicing
(“Defendant” or “HomeEq Servicing”) to dismiss the Complaint of Plaintiffs Leah and Allan
Abucay, Ciro and Franca Conti, Condionesto and Carmencita Tirol (collectively “Plaintiffs”),
pursuant to FED. R. CIV. P. 12(b)(6). Pursuant to FED. R. CIV. P. 78, no oral argument was heard.
After considering the submissions of all parties, it is the decision of this Court for the reasons herein
expressed that Defendant’s motion to dismiss is granted.1

1

The Court notes that the instant motion is one of many before this Court in twenty-five
related matters filed between September 22 and 23, 2011 following the dismissal of Almazan, et
al v. 1st 2nd Mortg. Co. Of N.J., Inc., et al., No. 10-1336, 2011 WL 2652149 (D.N.J. June 30,
2011). After reviewing the complaints in each of the related matters, it appears that all of the
complaints are substantively the same in several material regards and appear to be variations on
the same formulaic complaint. As a result, the complaints all suffer from the same deficiencies,
namely a failure to plead a plausible claim to relief. Accordingly, the Court will simultaneously
decide the twelve motions presently before it and dismiss the complaints in the following cases:
Lelina v. 1 st 2nd Mortgage Co. of NJ, Inc. (11-5517); Abanto v. Bank of America, N.A. (11-

I.

BACKGROUND2

This case arises out of the alleged predatory lending practices perpetrated by Defendants
during mortgage transactions entered into with Plaintiffs on their subject properties. Pls.’ Compl. ¶
2. Plaintiffs allege numerous Federal and State law claims, including but not limited to the Federal
Truth in Lending Act and Regulation Z, the Federal Real Estate Settlement Procedures Act, the
Home Ownership and Equity Protection Act, the Federal Racketeer Influenced and Corrupt
Organizations Act, the Fair Debt Collection Practices Act, the Fair Credit Report Act, State and
Federal High Cost Loan Statutes, the New Jersey Consumer Fraud Act, the New Jersey Lenders’
Liability Law, the New Jersey RICO statutes, breach of contract, fraud and misrepresentation,
negligence, among others. Pls.’ Compl. ¶ 2.
The Complaint in the instant matter was filed following the dismissal of the class action suit
in Almazan, et al v. 1st 2nd Mortg. Co. Of N.J., Inc., et al., No. 10-1336, 2011 WL 2652149 (D.N.J.
June 30, 2011)(Civ.A.No. 10-1336, ECF No. 191). The complaint in Almazan was dismissed
without prejudice on the grounds that Plaintiffs failed to adequately put any Defendants on notice

5519); Estacio v. Deutsche Bank Nat’l Trust Co. (11-5522); Abucay v. GMAC Mortgage Corp.
(11-5523); Salazar v. Nat’l City Bank (11-5528); Isip v. Nationstar Mortgage, LLC (11-5529);
Coolack v. Select Portfolio Servicing, Inc. (11-5531); Magat v. US Bank Nat’l Assoc. (11-5534);
Flores v. Wells Fargo, N.A. (11-5535); Cerciello v. First Franklin Loan Services (11-5536);
Auletta-Segura v. Green Tree Servicing, LLC (11-5538); and Abucay v. HomeEq Servicing (115539). This Court also notes that three related cases have already been dismissed by this Court
on the same grounds. See Gutierrez v. TD Bank, No. 11-5533, 2012 U.S. Dist. LEXIS 10724
(D.N.J. Jan. 27, 2012)(JLL); Aquino v. Aurora Loan Services, LLC, No. 11-5518, 2012 WL
2514844 (D.N.J. June 28, 2012)(DMC); and Flores, et al. v. HSBC, et al, No. 11-5525, 2012 WL
2522987 (D.N.J. June 29, 2012)(DMC).
2

The facts set-forth in this Opinion are taken from the Parties’ statements in their
respective moving papers.
2

of any specific claims. (Civ.A.No. 10-1336, Opinion adopting Report and Recommendation June
2, 2011, at p. 7, ECF No. 185). Specifically, the Court noted that Plaintiffs’ Complaint “[did] not
inform any reader what the Defendants did wrong, to whom they did it, or when they did it.”Id.
Plaintiffs were directed to re-file separate complaints against only those Defendants that were
involved in their respective loans. Further, Plaintiffs were admonished, under the principles of
Younger Abstention, to consider the existence of any pending state foreclosure or federal bankruptcy
proceedings in determining whether to file a federal law suit. Id. at 9. Finally, the Court found
Defendants’ arguments regarding Plaintiffs’ counsel’s failure to comply with the Local Civil Rule
11.2, which directs a party to disclose whether the matter in controversy is the subject of any other
action pending in any court, were well founded. Id. The Court warned that “[a] second round of noncompliance with that Rule will result in sanctions upon the filing of the appropriate motions.” Id.
Defendant HomeEq Servicing (“HomeEq Servicing”) is a mortgage loan originator in the
United States and is named in the Complaint as a parent company of its acquired lenders or
subsidiaries residential mortgage-lending operations, as well as on the belief that HomeEq Servicing
directed, participated in and/or influenced the setting and establishing of credit-relating policies and
underwriting guidelines and practices used by each of the other Defendants. Pls.’ Compl. ¶¶ 6-7.
Plaintiffs’ Complaint provides John Doe 1-10 as the alleged subsidiaries or acquired lenders of
HomeEq Servicing. Pls.’ Compl. ¶ 8. Plaintiffs allege that the Defendants collectively established
policies for retail and wholesale access to their loan products and that each Defendant directed,
participated in and/or influenced the setting and establishing of credit-related policies, procedures,
practices and underwriting guidelines used by each of the other Defendants. Pls.’ Compl. ¶¶ 9-10.

3

The Complaint only provides details concerning the Conti Plaintiffs’ mortgage.3 Specifically,
the Complaint provides:
Ciro and Franca Conti
77. Clients (Francesca and Ciro Conti) executed a note and mortgage to the Argent Mortgage
Company, LLC. in the amount of $198,000.00 on 10/6/2004 and NO RECORDED DATE.
On 3/12/2008 an Assignment of Mortgage was executed by Noriko Colston in the
Assignment of Mortgage neither she/he is the President or Vice President of Argent
Mortgage Company, LLC. to WELLS FARGO BANK, NA and recorded on July 4/23/2008.
The mortgage alleged went in default. A Foreclosure Complaint was filed by BARCLAYS
CAPITAL REAL ESTATE, INC. D/B/A HOMEQ SERVICING.
78. The mortgage noted was in the amount of $198,000.00 Adjustable Rate Note (LIBOR
INDEX - RATE CAPS) of initial rate of 8.450% will increase up to 14.450% on a monthly
treasury average index - payment and rate caps. On the first change of the rate will increase
6.000% plus one eight of one point and in the addendum documents to the adjustable rate
note the yearly rates is 9.875%. In the Uniform Residential Application supplied unsigned
to the borrower the initial interest rates is 8.450% with an ARM Programs (Variable Rate
Mortgage Program) and at the time of the written application the interest rates is "blank". The
handwritten application was executed on unknown date and the Regulation Z requires the
(3) days equivalent to 72 hours to acknowledged the Good Faith Estimate and was not signed
on without detailing the adjustment. This is a pattern of fraudulent documents and "bathe and
switch" lending practice. The borrowers paid closing costs plus the interest to increase to
14.450% and premiums or yield spread.
79. The initial payment monthly was $1,515.44 and will increased and the same was never
disclosed and provided any documents. In the foreclosure complaint filed with the attached
copy of the signed Adjustable Note Mortgage documents Ciro Conti did not signed the
mortgage note. The Clients were not given copies of the SIGNED Mortgage Loans
Documents, such as handwritten and typewritten mortgage loan application, Good Faith
3

As noted in Gutierrez, the Complaint in this action, as well as in each related action,
essentially constitutes a re-filing of the original complaint from Almazan. 2012 WL 272807, at
*1. Judge Linares noted that the new complaints “siphoned off the individual lender Defendants
named in the Original and Amended Complaints into separate actions” and refiled the complaint
“slightly modified and tailored to each individual lender with a short section of around ten
numbered paragraphs detailing the facts of the specific named Plaintiffs with whom each
Defendant had made mortgage loans.” Id. As a result of this apparent re-filing, the counts
alleged in each complaint are identical, down to their numeric order. As noted by Judge Linares,
the only apparent difference among the Complaints are the addition of facts particular to each
named Plaintiff.
4

Estimate and Truth in Lending (TILA) statements, Amortization Schedule, Settlement
Statements, Notice of Rights to Rescind at Closing, Mortgage, Mortgage Note, disclosures
and all documents regarding the mortgage signed to Argent Mortgage Company, LLC.
80. The assignment of mortgage signed by the President and Vice President of Argent
Mortgage Company, LLC. to WELLS FARGO BANK NA as TRUSTEE on 3/12/2008 and
recorded to the Bergen County, Register of Deeds on 4/23/2008, Book No. 1425 and Page
No. 78 with Receipt No. 38572 dated 4/23/2008. NORIKO COLSTON who resides in
Sacramento, CA was not the President/Vice President of ARGENT MORTGAGE
COMPANY, LLC. and the company filed for Bankruptcy protection.
81. The Clients, FRANCESCA CONTI does not work and speaks only Italian language, both
receives from Social Security $1,000.00 total and both husband wife has no knowledge in
real estate finance.
82. The Clients was not provided completed and signed Uniform Residential Loan
Application (1003), TIL Statement, Amortization Schedules, or Verification Statements for
Employment and either a pro forma or Financial Statements. The Federal Disclosure
Statement was not provided.
83. The HUD-1 closing statement at the time of the closing is different from the Good Faith
Estimate and TILA Statements. At closing the Client needs an explanation of the documents
and no one from the ARGENT MORTGAGE COMPANY, LLC. was present.
84. The clients were never informed that the mortgage will be sold WELLS FARGO BANK,
NA and the validity of the Assignment of Mortgage and documents are in question. Barclays
Capital Real Estate, Inc. d/b/a HOMEQ SERVCING had no interest in the mortgage and no
Assignment of Mortgage ever signed by Wells Fargo Bank, NA to Barclays Capital Real
Estate, Inc. The BARCLAYS CAPITAL REAL ESTATE, INC. d/b/a HOMEQ SERVICING
was NOT the owner at the time of the foreclosure complaint in due course.
85. The value of the property seems to be overstated. The value of the property currently is
$175,000.00.
86. The Clients (FRANCESCA AND CIRO CONTI) has NO ability to repay with the
mortgage extended. Argent Mortgage Company, Inc. did not offered better financing of
residential fixed mortgage for 30 years. Instead, the Client was given a Variable &
Adjustable Rate Mortgage without their understanding.
87. The financing extended to the Client appeared to be a Sub-prime nature it is clear they
do not have the ability to pay. Instead the Clients were given a bad mortgage in order the
Lending Company and the 3rd Party will received more revenues and enriched for
themselves.
5

88. Some documents were signed at settlement date and different from the original
documents presented during the processing of the mortgage loan application. Signed
documents including the TIL (Truth In Lending), including APR (Annual Percentage Rates),
finance charges, amount to be financed and total payments were not disclosed in a clear
conspicuous manner as to reflect the legal obligations of the parties. Neither were these
disclosures segregated from other information in a consumer-keep able format.
89. Absent proper consumer notification cited above, and with no proper HOEPA notice,
written in conspicuous type size forthcoming, the Lender seem seriously deficient in
disclosures.
90. The Lender's should have been more aware of the economic winds and have insisted on
greater applicant equity and subsequently followed a more conservative lending policy to
offset the pending value decline.
91. Argent Mortgage Company, LLC. made numerous material representations to the
Borrowers (FRANCESCA and CIRO CONTI) deleterious effects of variable rate interest
calculation and the structure of the financing. ARGENT MORTGAGE COMPANY, LLC.
clearly mislead, cheated, lied and violated the Borrowers trust in order to benefited large
amount of revenue. The appeal of the balloon payment is suspect since it makes the payments
appear artificially low and understates the extraordinary Final Payment.
92. The executed Assignment of Mortgage by Noriko Colston, President and Vice President
of ARGENT MORTGAGE COMPANY, LLC. is in question. She never had been an Officer
of ARGENT MORTGAGE COMPANY, LLC. and records shows that BARCLAYS
CAPITAL REAL ESTATE, INC. d/b/a HOMEQ SERVICING filed the foreclosure
complaint against Clients (FRANCESCA AND CIRO CONTI).
93. The pattern of irregularities, unrealistic asset-based reliance, flagrant lack of disclosures,
and under-emphasis on liquidity contributed to predatory lending. The deceptive practices
misrepresent the best interest of the Borrowers. The Variable & Adjustable Rate Mortgage
Note sets a stage of unrealistic expectations payment in the future and steady increase of
monthly payments are not at all serving the best interest of the Borrower. The initial
appraised value is over stated conspired transaction never disclosed causing irreparable harm
to the legitimate Borrowers.4
As demonstrated above, the only allegations specific to any named Defendant are that Barclays
4

As will be discussed in greater detail below, these allegations closely mirror those
highlighted as factually deficient in the dismissal of the Gutierrez action. There, Judge Linares
found such allegations to “mimic the generality and legally conclusory statements made in the
rest of Plaintiffs’ Complaint.” 2012 WL 272807, at *4.
6

Capital Real Estate Inc., doing business as HomeEq Servicing, was the entity to foreclose upon the
home despite the allegation that it was not the owner of the debt at the time of foreclosure. Plaintiff
does not provide any further allegations specific to HomeEq Servicing. The remaining Plaintiffs
Leah and Allan Abucay as well as Cedionesto and Carmencita Tirol merely allege that they “[h]ave
a similar situation with the rest of Plaintiffs given here.” No further factual allegations are provided
concerning said Plaintiffs’ mortgage transactions.
For the following reasons, this Court finds that the aforementioned allegations in connection
with the remaining general statements provided throughout the rest of the Complaint are insufficient
to state a claim upon which relief can be granted. Defendants Motion to Dismiss is therefore
granted.
II.

MOTION TO DISMISS

A.

LEGAL STANDARD
1.

Standard of Review for Motion to Dismiss for Lack of Subject Matter
Jurisdiction Pursuant to Rule 12(b)(6)

In deciding a motion under Rule 12(b)(6), a district court is “required to accept as true all
factual allegations in the complaint and draw all inferences in the facts alleged in the light most
favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A]
complaint attacked by a ... motion to dismiss does not need detailed factual allegations.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. (internal citations omitted). “[A court
is] not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain,
7

478 U.S. 265, 286 (1986). Instead, assuming that the factual allegations in the complaint are true,
those “[f]actual allegations must be enough to raise a right to relief above a speculative level.”
Twombly, 550 U.S. at 555.
“A complaint will survive a motion to dismiss if it contains sufficient factual matter to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded factual content allows
the court to draw the reasonable inference that the Defendant is liable for misconduct alleged.” Id.
“Determining whether the allegations in a complaint are ‘plausible’ is a ‘context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Young v.
Speziale, 2009 WL 3806296, *3 (D.N.J. Nov. 10, 2009) (quoting Iqbal, 129 S.Ct. at 1950).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged–but it has not ‘shown’–that the pleader is entitled to relief.”
Iqbal, 129 S.Ct. at 1950.
2.

FED. R. CIV. P. 9(b)

Fraud-based claims are subject to FED. R. CIV. P. 9(b). Dewey v. Volkswagon, 558 F. Supp.
2d 505, 524 (D.N.J. 2008) (“[New Jersey Consumer Fraud Act] claims ‘sounding in fraud’ are
subject to the particularity requirements of Federal Rule of Civil Procedure 9(b).”). Under Rule 9(b),
“[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting
fraud or mistake.” A Plaintiff must state the circumstances of the alleged fraud “with sufficient
particularity to place the Defendant on notice of the ‘precise misconduct with which [it is] charged.’”
Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (citing Lum v. Bank of America, 361
F.3d 217, 223-224 (3d Cir. 2004). To satisfy this standard, the Plaintiff must plead or allege the
8

date, time and place of the alleged fraud or otherwise inject precision or some measure of
substantiation into a fraud allegation.” Id.
B.

DISCUSSION

Plaintiffs’ Complaint suffers from many of the same pleading deficiencies that were noted
in the Almazan case, as well as the dismissals of several similar complaints to follow. Accordingly,
this Complaint must also be dismissed. As previously noted, this Court explained that the complaint
in Almazan “[did] not inform any reader what the Defendants did wrong, to whom they did it, or
when they did it.” Although Plaintiffs may have cured the “who” deficiencies by filing this separate
complaint against those Defendants who were allegedly involved in their respective loans, Plaintiffs’
Complaint in this action remains deficient regarding the “what” and “when” of Defendants alleged
conduct.5 Such pleading deficiencies fail to properly place Defendants on notice of “any specific acts
that it or [its subsidiaries] committed during the course of its mortgage transactions with Plaintiffs.”
Gutierrez v. TD Bank, No. 11-5533, 2012 U.S. Dist. LEXIS 10724, at *11. (D.N.J. Jan. 27, 2012).
This Court has already found occasion to dismiss three similarly pled complaints filed in the
wake of the Almazan dismissal. Of particular note is the case of Gutierrez v. TD Bank, No. 11-5533,
2012 U.S. Dist. LEXIS 10724. (D.N.J. Jan. 27, 2012) in which the Honorable Jose L. Linares
provided an in depth discussion regarding the sufficiency of Plaintiffs’ complaint. There, on the
basis of a similarly pled complaint to that in issue here, Judge Linares found that “as a general
matter, the paragraphs in the complaint [did] not adequately put Defendant [ ] on notice of any
specific claims linked to specific acts that it or the John Doe Defendants committed during the

5

This Court notes here that several of Plaintiffs’ pleadings do not even appear to remedy
the “who” deficiency as they fail to implicate any of the Defendants named to this action.
9

course of its mortgage transactions with the Plaintiffs.” Gutierrez v. TD Bank, 2012 U.S. Dist.
LEXIS 10724, at * 11. Rather, the Court found that the specific facts addressing the mortgage
transactions between Defendant and Plaintiffs were “scarce,” “while the Complaint extensively states
and restates legally conclusory statements regarding Defendant’s wrongful conduct as defined
exclusively within the terms of the relevant statutes or case law authority.”Id. at *17. By way of
example, Judge Linares found that, given the allegations raised by the complaint, Plaintiffs failed
to indicate:
which exact disclosures required by law were not provided; the nature and extent of any
credit reporting which occurred by Defendants in violation of federal law; what, if anything,
was inaccurate about such reporting; the substance of any written notices to Plaintiffs which
violated their rights under state law; which terms of any contract were breached by
Defendants; the nature of the emotional distress suffered by Plaintiffs; what, if any, benefit
Defendants may have obtained due to alleged inaccuracies represented to Plaintiffs as
amounts owed for any loans; what representations, if any, Plaintiffs made to Defendants
regarding their financial circumstances and their “ability to repay” justifying their allegations
regarding Defendants predation, and so on.
Gutierrez, 2012 U.S. Dist. LEXIS 10724, at * 17-18. Finally, the Court took issue with the fact that
Plaintiffs’ opposition failed to cite to any paragraphs in the complaint “wherein facts relevant to their
alleged claims are discernable.” Id. at *18.
This Court followed suit from Gutierrez with the dismissal of the complaints in Aquino v.
Aurora Loan Services, LLC, No. 11-5518, 2012 WL 2514844 (D.N.J. June 28, 2012) and Flores, et
al. v. HSBC, et al, No. 11-5525, 2012 WL 2522987 (D.N.J. June 29, 2012). In Aquino and Flores,
the Court found that the Plaintiffs were similarly deficient in their pleadings and therefore failed to
state a claim upon which relief might be granted. Plaintiffs now present identical claims to those
raised in Gutierrez, Flores, and Aquino, as well as nearly identical factual allegations, with the
exception of the inclusion of the specific details of each Plaintiff’s mortgage summarized above.
10

Consequently, Plaintiffs’ Complaint suffers from the same factual deficiencies highlighted in the
preceding caselaw and must therefore be dismissed.6
The Third Circuit has held that “[a]lthough a Plaintiff may use legal conclusions to provide
the structure for the complaint, the pleading’s factual content must independently ‘permit the court
to infer more than the mere possibility of misconduct.’” Guirguis v. Movers Specialty Servs., 346
Fed. App’x. 774, 777 (3d Cir. 2009), citing Iqbal, 129 S.Ct. at 1950. Here, Plaintiffs’ Complaint is
almost entirely a recitation of legal conclusions closely mirroring the language of the statutes
Defendants are claimed to have violated. Indeed, the Complaint does more to inform this Court of
the state of the law than it does to inform the Court of the facts upon which Plaintiffs’ claims are
based. Such pleading leaves this Court unable to discern the appropriate causes of action for which
Defendants might plausibly be held accountable. Moreover, the Court is left with the impression
that either Plaintiffs are unable to identify the true nature of the causes of action they allege, or that
Plaintiffs allege that Defendants have violated each statute in virtually every way conceivable.
Plaintiffs must provide some grounds upon which this Court may assess the sufficiency of each of
the claims asserted, yet they have failed do more than vaguely allege that Defendant was a participant

6

The Court also notes that claims common to both the Gutierrez and the instant action
were dismissed in Gutierrez as not cognizable as a matter of law. 2012 U.S. Dist. LEXIS 10724,
at *35. Such claims include (1) furnishing inaccurate information to credit agencies (Count 5);
(2) failure to correct inaccurate reporting (Count 6); (3) failure to provide required notices and
disclaimers (Count 7); (4) predatory and negligent lending (Counts 10 and 28); (5) New Jersey
Licensed Lenders Act (Count 11); and (6) unfair business practices (count 16). The Court in
Gutierrez found that the aforementioned counts should be dismissed on the grounds that they
were redundant or failed to cite to any law or statute supporting a claim independent of the
claims already raised. The Court therefore dismissed the aforementioned claims without
prejudice “to Plaintiffs’ amendment of any claims asserted therein which do not duplicate other
claims already stated in Plaintiff’s complaint.” Id. at *40. This Court echoes the conclusions
drawn in Gutierrez in further support of the dismissal of the aforementioned claims.
11

in some of the Plaintiffs’ mortgage transactions.
Accordingly, this Court finds that the entirety of Plaintiffs’ Complaint fails to plead with the
requisite particularity to satisfy even the liberal pleading standards of Rule 8(a), let alone the
heightened pleading standard for Plaintiffs’ fraud-based allegations under Rule 9(b).7 Plaintiffs’
Complaint must therefore be dismissed.8
III.

CONCLUSION

Accordingly, as this Court finds that Plaintiffs have failed to state a claim upon which
relief can be granted, Defendant’s motion to dismiss is granted without prejudice.

S/ Dennis M. Cavanaugh
DENNIS M. CAVANAUGH, U.S.D.J.

Date:
cc:

July 30 , 2012
All Counsel of Record
Hon. J. A. Dickson, U.S.M.J.
File

7

With respect to the Gutierrez Plaintiff’s fraud-based claims, Judge Linares addressed the
argument, similarly raised here, that the requirements of Rule 9(b) should be relaxed for
circumstances where factual information is exclusively within the opposing party’s knowledge or
control. The Court found the rule cited by Plaintiffs to be inapplicable under the circumstances,
and this Court agrees. As noted by Judge Linares,
Plaintiffs need only state with particularity the who, what, when and where of the false
misrepresentations or omissions made by Defendants based on their familiarity with said
misrepresentations as experienced by them in the mortgage transactions . . .
Id. at 25-26 (emphasis added). There, as here, “those facts are both within the Plaintiffs’ control
and need not be enumerated in every detail or with respect to each and every instance to meet the
heightened pleading standard for fraud-based claims.” Id. Just as the Gutierrez Plaintiff was not
relieved of its obligation to plead claims of fraud with specificity under Rule 9(b), Plaintiffs here
will not be so relieved.
8

As this Court finds that the motion to dismiss should be granted for the reasons herein
expressed, the Court declines to address the statute of limitations argument raised by Defendant
and addressed by Judge Linares in the Gutierrez opinion. Similarly, this Court declines to address
the arguments raised by Defendants concerning abstention.
12