ENGLISH v. FEDERAL NATIONAL MORTGAGE ASSOCIATION et al

Filing 24

OPINION. Signed by Judge Claire C. Cecchi on 11/26/13. (gmd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARILYNN ENGLISH
Plaintiff,

Civil Action No. 13-2028(CCC)

V.

FEDERAL NATIONAL MORTGAGE
ASSOCIATION, FEDERAL HOME
LOAN MORTGAGE CORPORATION,
BANK OF AMERICA N.A.

OPINION

Defendants.

CECCHI, District Judge.
I.

INTRODUCTION
This matter comes before the Court on Defendants Bank of America, N.A. and Federal

National Mortgage Association’s (collectively, “Defendants”) Motion to Dismiss Plaintiff
Marilynn English’s (“Plaintiff’) Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). The
Court has given careful consideration to the submissions from each party. Pursuant to Fed. R.
Civ. R. 78(b), no oral argument was heard,’

Based on the reasons that follow, Defendants’

motion to dismiss is granted without prejudice. Plaintiff is granted thirty (30) days in which to
file an Amended Complaint that cures the pleading deficiencies discussed below,

The Court considers any new arguments not presented by the parties in their papers to be
waived. See Brenner v. Local 514, United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1298
(3d Cir. 1991) (“It is well established that failure to raise an issue in the district court constitutes
a waiver of the argument,”),

IL

BACKGROUND
Plaintiff owns a residential property located at 97 Pease Avenue, Verona, New Jersey

(the “Property”), (Compi. 2.2) On September 19, 1988, Plaintiff acquired the property. (Compi.
4.) On March 21, 2003, Plaintiff refinanced her mortgage loan with Countrywide, America’s

Wholesale Lender (“AWL”). (Compl. 4.) Plaintiff brings this suit to Quiet Title to her property.
(Compi. 4.) Plaintiff alleges that the assignment of her mortgage is “null and void” because of
the appearance of a robo-signer. (Compl. 14.)
On February 27, 2013, Plaintiff filed her Complaint in the Superior Court of New Jersey,
Chancery Division, Essex County.

(Notice of Removal 2.)

Complaint to this Court under 28 U.S.C.

§

Defendants removed Plaintiff’s

1446 and 1441. (Notice of Removal 1.)

On April 8, 2013, Defendants Bank of America, N.A. and Federal National Mortgage
Association filed this Motion. (Defs.’ Mot.) Defendants argue that Plaintiff fails to state a claim
for relief. (Defs.’ Mot. 1.) On April 16, 2013, Plaintiff sent Defendants a Memorandum of Law
in Support of Opposition to the Motion to Dismiss, (Pl.’s Mem. Supp. Opp’n Mot.) On April
29, 2013, Defendants’ filed a Reply Brief in Further Support of their Motion to Dismiss the
Complaint. (Defs.’ Reply Br.) Plaintiff has since filed three Supplemental Answers.
IlL

LEGAL STANDARD
A. Defendants’ Motion To Dismiss Pursuant to Rule 12B)(6)
For a complaint to survive dismissal pursuant to Fed, R. Civ. P. 12(b)(6), it “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,”

Ashcrofl v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell AtI. Cow. v. Twombly, 550 U.S. 544,
570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded
2

Each reference to “Compl.” or “Complaint” refers to Plaintiff’s Amended Complaint filed on
February 27, 2013. (Notice of Removal Ex, 1.)

factual allegations in the complaint as true and draw all reasonable inferences in favor of the
non-moving party.

See Phillips v. City of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

“Factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Furthermore, “[a] pleading that offers labels and conclusions
will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement,” Igbal, 556 U.S. at 678 (internal citations omitted).
The burden of proof for showing that no claim has been stated is on the moving party.
Hedges v.

404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc.,

926 F.2d 1406, 1409 (3d Cir. 1991)). During a court’s threshold review, “[t]he issue is not
whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to
support the claims.” In re Rockefeller Ctr. Props., Inc., 311 F.3d 198, 215 (3d Cir. 2002). If a
claim is dismissed pursuant to Rule 12(b)(6), the plaintiff may be granted leave to amend or
reassert the claim. In re Burlington Coat Factory Litjg, 114 F.3d 1410, 1434 (3d Cir. 1997).
B. Liberal Pleading Standard for Pro Se Litigants

A pro se litigant’s complaint is held to “less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Courts have a duty to
construe pleadings liberally and apply the applicable law, irrespective of whether a pro se litigant
704 F,3d 239, 244 (3d Cir. 2013);

has mentioned it by name. Mala v.
Dluhos v.

321 F.3d 365, 369 (3d Cir. 2003); Higgins v. çyç, 293 F.3d 683, 688 (3d

Cir. 2002). A pro se complaint “can only be dismissed for failure to state a claim if it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citing Haines, 404 U.S. at
520-21); Bacon v. Minner, 229 F. App’x 96, 100 (3d Cir. 2007).

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IV.

DISCUSSION

Plaintiff pleads eight Counts pursuant to her quiet title action, These are: (I) failure to
state a claim to subject property, (2) identity of true creditor is unknown, (3) slander of title, (4)
Quia Timet, (5) conspiracy to commit fraud, (6) use of robo-signer violates RICO and the Fair
Debt Collection Practices Act, (7) notary fraud, and (8) violation of U.C.C.

§‘

501(b)(2) and 3-

203(d). Additionally, Plaintiff claims New Jersey’s quiet title statute was violated,
Defendants argue that Plaintiffs complaint should be dismissed because Plaintiff has
failed to allege sufficient facts that can be construed as entitling Plaintiff to relief. (Defs.’ Mot.
2.) Plaintiff argues that she has sufficiently plead her quiet title claim. (Compi. 16.)
A. Plaintiff Did Not Properly Plead a Quiet Title Action

Plaintiff’s complaint alleges a quiet title action. In support of this claim, Plaintiff alleges
that “the chain of title on her property is broken.” (Compi. 16.) Plaintiff generally alleges that
the assignment is fraudulent because of the appearance of a robo-signer and that she does not
know the owner of her mortgage. (Compl.) Plaintiff comes to the conclusion that her title is
incapable of being saved. (Compi. 9.)
Defendants state “[a]s a matter of law and public record, the chain of title to the mortgage
lien on Plaintiff’s property is clear, and there is nothing to ‘quiet.”

(Defs.’ Reply Br. 1.)

Defendants allege that Plaintiff’s complaint consists of “generalities relating to securitization of
mortgages, or conclusory statements conflating ownership of her Property, the Promissory Note,
and investment on the Loan” and therefore fails to state a viable claim. (Defs.’ Mot. 34.)
Defendants argue that Plaintiff has failed to allege facts showing how Defendants’ competing
interests to the property are wrongful. (Defs.’ Mot. 3.) In support of their motion, Defendants

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allege that Plaintiff does not dispute the debt owed under the note, and that there is no
foreclosure action in this case. (Defs.’ Reply Br. 1,4.)
The Third Circuit in Club Comanche, Inc. v, Gov’t of the Virgin Islands explained that
the pleading requirements for quiet title actions are established by a state’s quiet title statute(s).

278 F.3d 250, 259 (3d Cir. 2002), Importantly, New Jersey’s quiet title statute states:
Any person in the peaceable possession of lands in this state and claiming ownership
thereof, may, when his title thereto, or any part thereot is denied or disputed, or any
other person claims or is claimed to own the same, or any part thereof or interest therein,
or to hold a lien or encumbrance thereon, and when no action is pending to enforce or test
the validity of such title, claim or encumbrance, maintain an action in the superior court
to settle the title to such lands and to clear up all doubts and disputes concerning the

same.
N.J.S.A.

§

2A:62—1. “The purpose of an action to quiet title is to put within the power of a

person, who is in peaceable possession of realty as an owner, a means to compel any other
person, who asserts a hostile right or claim, or who is reputed to hold such a right or claim, to
come forward and either disclaim or show his right or claim, and submit it to judicial
determination.” Schiano v. MBNA, No. 05-171, 2013 WL 2452681, at *26 (D.N.J. Feb. 11,
2013) (citing Brookdale Park Homes, Inc. v. Twp. of Bridgewater, 280 A.2d 227, 231 (N.J.
Super. Ct. Ch. Div. 1971)).
As Defendants correctly state, Plaintiff has failed to plead that Defendants’ competing

interests to the mortgage are wrongful. As stated above, Plaintiff seeks to quiet title on the
Property.

Her Complaint alleges that she owns real property located at 97 Pease Avenue,

Verona, New Jersey. (Compi. I) The mere recitation of the elements to a quiet title cause of
action is insufficient to sustain the claim. Plaintiff fails to allege facts to support her quiet title
action. Plaintiff fails to allege how any perceived irregularities in the assignments between third

parties cloud title in the mortgage itself These allegations are insufficient to establish that a
quiet title action is warranted.
For example, in Schiano, 2013 WL 2452681, at * 1, the plaintiffs purchased their home in
1987 and initially secured it with a mortgage.
reassigned, and refinanced numerous times,”
title” claim against defendants.

The plaintiffs’ home was then “assigned,

4: The plaintiffs filed an action asserting a “quiet

at *8, The court held that the plaintiffs’ assertions, “that they

do not know the owner of their mortgage and that the assignments of their mortgage are invalid,”
was insufficient to establish a quiet title action.

4: at *26. The court granted the defendant&

motion to dismiss the plaintiffs quiet title action.

14: at *27. Jacobs v. Fannie Mae, No. A-5197-

11T4, 2013 N.J. Super. Unpub. LEXIS 1583 (N.J. Super. Ct. App. Div. June 26, 2013) is also
instructive. Plaintiff filed a quiet title action to declare his mortgage unencumbered.
Plaintiff’s home loan was secured by a mortgage and note.

.[4: at *3,

4: at *6. The trial court judge held

“an action to quiet title is designed only to remove clouds, disputes or doubts infecting an
otherwise good chain of record ownership” and denied the complaint for “not sensibly
demonstrate[ing] that there is any cloud or doubts affecting Plaintiffs title,” Id. at *5, 7. On
appeal, the appellate court affirmed the trial court’s decision.

4: at *7,

Additionally, Defendants argue that Plaintiff’s complaint alleging fraudulent assigmnent
of her mortgage should be dismissed because Plaintiff lacks standing to challenge the assignment
of her mortgage. (Defs.’ Mot. 5.) Defendants argue that a mortgage assignment is a contract to
which Plaintiff is not a party or intended third party beneficiary.

(14:) Plaintiff argues that she

has standing. (P1. ‘s Mem. Supp. Opp’n Mot. 10.)
The Third Circuit has held that to establish standing, “a Plaintiff must establish that he or
she has suffered an ‘injury in fact’ that is both ‘concrete and particularized’ and ‘actual or

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imminent, not conjectural or hypothetical.” Doe ex rd. v. Lower Merion Sch. Dist., 665 F.3d
524, 542 (3d Cir. 2011) (internal citations omitted). A Plaintiff that is not a party to a contract
lacks standing to sue for a violation of the contract, Glenn v. Haan, No. 07-1 12, 2007 WL
894213, at * 10 n.1 5 (D.N.J. Mar. 21, 2007). In the context of a mortgage assignment, case law

has held that a mortgagor, or borrower, does not have standing to allege that an assignment
between two third parties is invalid. See Grullon v. Bank of Am., N.A., No. 10-5427, 2013 U.s.
Dist. LEXIS 48394, at *3135 (D.N.J. Mar. 28, 2013); Schiano, 2013 WL 2452681, at *2526
(D.N.J. Feb. ii, 2013); In re Walker, 466 B.R. 271, 285 (Bankr. E.D. Pa. 2012).
Plaintiff has failed to allege that she is a party or intended third party beneficiary to the
contract and that she therefore has standing to challenge the contract.
Accordingly, the Court finds that Plaintiffs allegations fail to establish that a quiet title
action is warranted, Plaintiff has not met her pleading burden. This claim is denied without
prejudice.
B. Plaintiff Did Not Properly Plead a Cause of Action for Slander of Title
Plaintiff asserts that after conducting her own research, the investor of her alleged loan is
Tewrin Advisors or alternatively Bank of America, Fannie Mae, and Freddie Mac. (Compi. 6.)
Plaintiff states that Bank of America informed her that the current owner of the Note is Fannie

Mae. (Compl. 7.) Plaintiff also states that Bank of America informed her that Bank of America
is the holder of the promissory note. (Compi. 6.) Defendants generally allege “the Complaint

does not and cannot, as a matter of law, state any cognizable claim for relief.” (Defs.’ Reply Br,
4.)
To establish a cause of action for slander of title, a plaintiff must demonstrate: “(1)
publication (2) with malice (3) of false allegations concerning plaintiffs property or product (4)

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causing special damages, i.e., pecuniary harm.” Sys. Operations, Inc. v. Scientific Games Dcv,
Corp., 555 F.2d 1131, 1140 (3d Cir. 1977); see also Stewart Title Guar, Co. v. Greenlands

Realty, L.L.C., 58 F. Supp. 2d 370, 388 (D.N.J. 1999); Lone v. Brown, 199 N.J. Super. 420, 426
(1985>. Malice is the “intentional commission of a wrongful act without just cause or excuse.”
Stewart Title Guar, Co., 58 F. Supp. 2d at 388 (citing Lone, 199 N.J. Super. at 426.) To allege
malice, a plaintiff must show that the defendant “knew the statement to be false or acted in
reckless disregard of its truth or falsity.” Ellman v. Hinkes, 2007 WL 632968, at *8 (N.J. Super.
Ct. App. Div. 2007) (internal citations omitted); Morin v. 20/20 Cos., No. 10-6476, 2012 U.S.
Dist. LEXIS 126744, at *19 (D.N.J. Sept. 5, 2012).
Here, Plaintiff’s amended complaint does not properly state a claim for slander of title.
Plaintiff’s vague allegations fail to allege that Defendants acted with malice. Therefore, Plaintiff
has failed to state a claim for slander of title pursuant to Federal Rule of Civil Procedure
1 2(b)(6). Plaintiffs claim for slander of title will be dismissed without prejudice.
C. Plaintiff Did Not Plead a Cause of Action for Fraud or Conspiracy to
Commit Fraud

Counts 5 and 7 of Plaintiff’s amended complaint contain claims for fraud.

Count 5

alleges notary and assignment fraud, while Count 7 alleges conspiracy to commit fraud. In
support of her notary fraud claim Plaintiff argues that the fraudulent assignment makes the
assignment null and void, (Compl. 15.) In support of her claim, Plaintiff alleges that a notary in
California witnessed the signature of a signer in Florida, (Compl. 15.) Plaintiff also alleges that
there is “fraud in factum, fraud in inducement, and fraud in the execution.” (P1. Certification,
Doc. 6, 22.) In support of her conspiracy to commit fraud claim, Plaintiff argues that her harm is
the potential failure to convey clear title to property. (Compl. 12-13.)

8

Defendants argue Plaintiffs fraud claims should be dismissed because Plaintiff does not
provide any facts to support her claims. Additionally, Defendants argue “Plaintiff cannot base
her claim on the allegation that the assignment was fraudulent, because she was not a party to
assignment, and she doesn’t allege any facts indicating she relied on the assignment to her
detriment.” (Defs.’ Mot. 6.) Defendants also argue that “there can be no conspiracy if there is
no underlying cause of action.” (Defs.’ Mot. 6 n.2.)
Pursuant to Federal Rule of Civil Procedure 9(b), the elements of fraud must be pleaded
with particularity. Tredennick v. Bone, 323 F. App’x 103, 105 (3d Cir. 2008). This pleading
requirement applies to fraud actions under federal statutes, as well as to fraud claims based on
state law. Petruska v. Gannon Univ., 462 F.3d 294, 310 (3d Cir. 2006); Dewey v. Volkswagen
,

558 F. Supp. 2d 505, 524 (D.N.J. 2008)
In an action for fraud under Rule 9(b), the plaintiff must plead “(1) A specific false

representation of material facts; (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) the plaintiff acted upon it to his damage.” Hemphill v. Meyerson, 65 F.
App’x 776, 778-79 (3d Cir, 2003); Christidis v. First Pa. Mortgage Trust, 717 F,2d 96, 99 (3d
Cir. 1983); Rogers v. Morrice, No. 12-7910, 2013 U.S. Dist. LEXIS 57863, at *18 (D.N,J. Apr.
23, 2013); Panella v. O’Brien, No. 05-1790. 2006 WL 2466858, at *8 (D.N.J. 2006).
“New Jersey law is clear that a plaintiff does not have a cause of action for fraud against
a defendant until the plaintiff actually suffers damages because actual damages are an element of
the cause of action for fraud.” Maertin v. Armstrong World Indus., Inc., 241 F. Supp, 2d 434,
458 (D..J. 2002); Holmin v. TRW, Inc.. 330 N.J. Super. 30, 36 (N.J. Super. Ct. App. Div.

9

20003. A cause of action does not accrue until “damage is inflicted,” Holmin, 330 N.J. Super. at
35-36.
Additionally, a claim for civil conspiracy must allege “a combination of two or more
persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful
means, the principal element of which is an agreement between the parties to inflict a wrong
against or injury upon another and an overt act that results in damage.” Am. Corp. Soc’y v.
Valley Forge Ins., 424 F. App’x 86, 90 (3d Cir. 2011) (citing Banco Popular N. Am. v. Gandi,
184 N.J. 161, 177 (2005)).

There must be an underlying wrong apart from the conspiracy.

Reese v. Horizon Blue Cross Blue Shield of N.J., No. 08-1382, 2008 WL 5188853, at *3 (D.N.J.
Dec. 10, 2008), Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 122
(N.J. Super. Ct. App. Div. 201 1). If there is no underlying cause of action, there cannot be a
conspiracy.
The Court finds that Plaintiff’s fraud counts fall short of the heightened pleading
standards of Rule 9(b). Plaintiff has failed to allege facts showing that she acted on Defendants’
alleged misrepresentation to her detriment.

Additionally, Plaintiff’s fraud allegations fail to

explain how Plaintiff suffered damages as a result of Defendants’ alleged false representations.
Plaintiff also fails to allege any factual support for her conspiracy claim, Plaintiff alleges that the
underlying wrong to the conspiracy is fraud.

Plaintiff does not plead her fraud claim with

enough specificity required by Rule 9(b) to allege an unlawful act. Therefore, Plaintiff has failed
to state a claim for conspiracy. These counts are denied without prejudice.

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Ii Plaintiff Did Not Plead Violations of RICO and FDCPA

In Count 6, Plaintiff alleges that the use of robo-signers violates the Federal RICO statute
and the Fair Debt Collection Practices Act (“FDCPA”). Plaintiffs claims should be dismissed
upon her failure to adequately allege activity that satisfies requisite acts under RICO and
FDCPA.
Plaintiff alleges that robo-signing makes the assignment null and void. (Compl. 14.) To
support this allegation Plaintiff asserts that “the only assignment is by a known robo-signer,
Chester Leving.” (Compl. 14.) Plaintiff claims Chester Levings is on a robo-signer list by
McDonnell Property Analytic Approved robo-singers. (Compl. 14.; PL’s Mem. Supp. Opp’n
Mot. 3, Ex. 7.)
Defendants argue that Plaintiff does not allege any supporting facts and fails to state a
claim under these statutes. (Defs.’ Mot. 6 n.1.) Defendants additionally argue that Plaintiff
cannot state a claim of the basis of conclusory allegations of robo-signing without additional
factual support. (Defs.’ Mot, 6-7.) Defendants also allege, “BANA here is both the mortgagee
and mortgage service,” (Defs.’ Reply Br. 4.) Defendants argue Plaintiff fails to state a claim

under these statutes. (Defs.’ Mot. 6 n.1.)
a. RICO

The RICO statute provides, in pertinent part “any person injured in his business or
property by reason of a violation of section 1962 of this chapter may sue therefore in any
appropriate United States District Court and shall recover threefold the damages he sustains and
the cost of the suit,

.

.“

18 U.S.C.

§ 1964(c).

Under RICO, there are 4 types of prohibited activities under Section 1962. 18 U.S.C.
1962. Section 1962 prohibits:

11

§

(a) the use of income “derived, directly or indirectly, from a pattern of racketeering
activity or through collection of an unlawful debt. to use or invest,.. in acquisition
of any interest in, or the establishment or operation of. any enterprise which is engaged
in. or the activities of which affect, interstate or foreign commerce”
(b) a “person through a pattern of racketeering activity or through collection of an
unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of
any enterprise which is engaged in, or the activities of which affect, interstate or foreign
.

.

.

commerce”
(e) a “person employed by or associated with any enterprise engaged in, or the activities
of which affect, interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering
activity or collection of unlawful debt.”
(d) a “person to conspire to violate any of the provisions of subsection (a), (b), or (c)”
18 U.S.C.

§ 1962; Malley-Duff & Assocs., Inc. v. Crown Life Ins.

Co., 792 F.2d 341, 344 (3d

Cir. 1986).
To sufficiently allege a violation of the RICO statute, at a minimum, a plaintiff must
allege a “pattern of racketeering activity” or “collection of unlawful debt.” 18 U.S.C.

§

1962;

see United States v. Eufrasio, 935 F.2d 553, 558 (3d Cir. 1991). “Racketeering activity” within
the meaning of RICO includes state law crimes such as murder, bribery and extortion, and
federal crimes such as mail fraud, wire fraud and securities fraud.

18 U.S.C.

§

1961(1).

“Unlawful debt” is a debt incurred in connection with gambling activity or which is usurious. 18
U.S.C.

§

1961(6); Huertas v. Galaxy Asset Mt., 641 F.3d 28, 35 (3d Cir. 2011).

Plaintiffs conclusory allegations that Defendants violated the Federal RICO statute are

simply inadequate to plead a valid RICO claim. Plaintiff has not alleged any racketeering
activity on the part of Defendants, Therefore, Plaintiff has failed to state a claim under RICO.
b. FDCPA
The FDCPA prohibits the use of abusive, deceptive, and unfair debt collection practices

by debt collectors. 15 U.S.C. § 1692. To bring a claim under the FDCPA. plaintiff must show
1) defendant is a debt collector, and 2) defendant debt collector engaged in prohibited practices

12

to collect a debt. Slimm v. Bank of Am. Corp., No. 12—5846. 2013 WL 1867035. at *4 (D.N.J.
I\’lay 2, 2013).

Under the FDCPA, a “debt collector” refers to “any person who uses any

instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C.A.

§

1692a.

The term debt collector does not include “any person collecting or attempting to collect
any debt owed or due or asserted to be owed or due another to the extent such activity
concerns a debt which was not in default at the time it was obtained by such person.” 15
U.S.C.A.

§

1692a(6)(F)(iii). The Third Circuit has indicated that an assignee of an obligation is

not a “debt collector” if the obligation is not in default at the time of the assignment.” Pollice v.
Nat’l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 20003; see also Schiano v. MBNA, No. 05—
1771, 2013 WL 2452681, at *12.43 (D.N.J. Feb. 11, 2013) (finding mortgage servicers are
exempt from the FDCPA if the mortgage was not in default at the time they began servicing the
loan). Additionally, creditors, who collect debts on their own behalf, are not generally subject to
the FDCPA. Pollice, 225 F.3d at 403; Staub v. Harris, 626 F.2d 275, 277 (3d Cir. 1980).
As with the RICO claim, Plaintiff’s allegations that Defendants violated the FDCPA are
insufficient to plead a valid FDCPA claim. Plaintiff has failed to allege any facts describing how
Defendants are considered “debt collectors” under FDCPA. Plaintiff has not met her burden,
Accordingly, Plaintiff’s Count 6 should be dismissed without prejudice for failure to plead with
sufficient specificity.
E. Plaintiffs Additional Claims are also Denied Without Prejudice

Plaintiffs complaint also alleges violations of U.C.C.

§

50l(b)(2) and 3-203(d), and a

cause of action for “Quia Timet.” Plaintiff presents legal conclusions in support of these claims,

13

but provides no factual support. Therefore, these claims are dismissed without prejudice for
failure to state a claim under Fed. R, Civ, P. 12(b)(6).
IV.

CONCLUSION

Based on the reasons set forth above, Defendants’ Motion to Dismiss is granted. To the
extent the deficiencies in Plaintiffs claims can be cured by way of amendment, Plaintiff is
granted thirty (303 days to reinstate this matter and file an Amended Complaint for purposes of

amending such claims.
An appropriate Order accompanies this Opinion.

CLAIRE C. CECCHI, U.S.D.J.

DATED: November 26, 2013

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