KOWALSKY v. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR SECURITIZED TRUST AMERIQUEST MORTGAGE SECURITIES ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2003-8 et al

Filing 38

OPINION. Signed by Judge Claire C. Cecchi on 10/25/17. (DD, ) N/M

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PETER KOWALSKY,
Plaintiff
V.

Civil Action No.: 14-07856 (CCC)(JBC)

OPINION

DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee for Securitized Trust
Ameriquest Mortgage Securities Asset-Backed
Pass-Through Certificates Series 2003-8;
AMERIQUEST MORTGAGE COMPANY, as
Servicer; and DOES 1 Through 10, Inclusive,
Defendants.
CECCHI, District Judge.
I.

INTRODUCTION
This matter comes before the Court on the motion of Deutsche Bank National Trust

Company (“Defendant”) to dismiss pro se Plaintiff Peter Kowalsky’s (“Plaintiff’) Second
Amended Complaint (“SAC”) pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 30). The Court has
given careful consideration to the submissions from each party. Pursuant to Fed. R. Civ. P. 78(b),
no oral argument was heard. For the reasons that follow, Defendant’s Motion to Dismiss is
granted.
II.

BACKGROUND
Plaintiff commenced this action by filing an initial Complaint on December 17, 2014,

asserting thirteen causes of action against Defendant and Ameriquest Mortgage Company
(“Ameriquest”). (ECF No. 1). Defendant and Ameriquest filed motions to dismiss on February
27, 2015 and May 14, 2015. (ECF Nos. 5, 12). Mindful that Plaintiff was apro se litigant, the

Court construed Plaintiffs pleadings liberally. Despite a liberal reading of the pleadings, the Court
dismissed all causes of action against Defendant and Ameriquest without prejudice on September
30, 2015. (ECF No. 14).
On October 23, 2015, Plaintiff timely filed an Amended Complaint in which he sought to
cure the deficiencies of the initial Complaint. (ECF No. 16). The Amended Complaint contained
only two causes of action against Defendant and Ameriquest: (1) breach of contract; and (2) fraud
in the concealment. (Id.). Both Defendant and Ameriquest again filed motions to dismiss on Rule
12(b)(6) grounds. (ECF Nos. 17, 18). As the Amended Complaint alleged nearly identical facts
to the initial Complaint and shed no additional light on the specifics of the fraud allegation, the
Court again dismissed all causes of action against Defendant and Ameriquest without prejudice on
July 2$, 2016. (ECF No. 26).
On August 10, 2016, Plaintiff filed the SAC, containing one cause of action for fraudulent
concealment. (ECf No. 28). It appears to the Court that the vast majority of the facts contained
within the SAC, which arise out of a residential mortgage loan and note, are substantially similar
to the facts alleged in both the initial Complaint and Amended Complaint, and as such, the Court
incorporates by reference the facts as presented in its prior Opinion and Orders. (ECF Nos. 14,
15, 26).
On August31, 2016, Defendant moved to dismiss the SAC for failure to state a claim under
fed. R. Civ. P. 12(b)(6).1 (ECf No. 30). On September 13, 2016, Plaintiff opposed the motion.
(ECF No. 32). On September 19, 2016, the Court referred the action to mediation. (ECf No. 33).
Mediation proved unsuccessful, and Defendant’s motion, (ECF No. 30), was reinstated.

On

Ameriquest also moved to dismiss the SAC, but was dismissed with prejudice from the case by
stipulation and order, (ECF No. 35), and thus, its motion is not before the Court.
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January 10, 2017, Defendant filed a reply brief in support of its motion to dismiss. (ECF No. 37).
III.

LEGAL STANDARD
A.

Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(6)

For a complaint to survive dismissal pursuant to fed. R. Civ. P. 1 2(b)(6), it “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded
factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. See Phillips v. Cty. 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’

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will not do. Nor

does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.”
Iqbal, 556 U.S. at 67$ (citations omitted).
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.” See Haines v. Kerner, 404 U.S. 519, 520-2 1 (1972). Courts have a duty to
construe pleadings liberally and apply the applicable law, irrespective of whether a pro se litigant
has mentioned it by name. See Mala v. Crown Bay Marina, Inc., 704 f.3d 239, 244 (3d Cir. 2013);
see also Diuhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Apro 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) (quoting Haines, 404 U.S. at 520-21); see also Bacon v. Minner, 229 F. App’x 96,
100 (3d Cir. 2007).

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IV.

DISCUSSION
A.

Spoliation Claim

In the SAC, Plaintiff appears to allege fraudulent concealment based upon spoliation such
that the Court may apply fed. R. Civ. P. 9 “with flexibility.” (ECF No. 28 at 6). To establish a
fraudulent concealment claim based on spoliation of evidence:
A plaintiff must establish five elements: (1) The defendant had a legal obligation to disclose
evidence in connection with an existing or pending litigation; (2) the evidence was material
to the litigation; (3) the plaintiff could not reasonably have obtained access to the evidence
from another source; (4) the defendant intentionally withheld, altered, or destroyed the
evidence with purpose to disrupt the litigation; and (5) the plaintiff was damaged in the
underlying action by having to rely on an evidential record that did not contain the evidence
defendant concealed.
Williams v. BASF Catalysts LLC, 765 F.3d 306, 320-21 (3d Cir. 2014) (citing Rosenblit v.
Zimmerman, 166 N.J. 391, 406-07 (2001)).
The Court previously dismissed Plaintiffs fraudulent concealment claim for failure to meet
the heightened pleading requirement of Rule 9(b). (ECF Nos. 14 at 17-18, 26 at 3). The Court
determined that Plaintiff failed to plead the “who, what, when, where, and how” of the alleged
fraudulent activity, as required by Rule 9(b), in both his Complaint and Amended Complaint. See
id.; see also Weske v. Samsung Elec., Am., Inc., 934 F. Supp. 2d 698, 703 (D.N.J. 2013) (“In
alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud
or mistake.”). The Court further determined that Plaintiff failed to allege facts sufficient to infer
that Defendant owed Plaintiff a duty of disclosure. (ECFN0. 14 at 18). Plaintiffs SAC similarly
fails to allege such facts. Moreover, the evidence allegedly subject to spoliation, namely the Note,
Mortgage, and chain of title, was provided by Defendant and is part of the public record. (ECF
Nos. 5-3, 5-8, 17-2, 18-2, 28 at 7). As such, Plaintiff has failed to articulate any facts entitling him
to relief for fraudulent concealment based upon spoliation, and the Court will dismiss Plaintiffs

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claim.
B.

Consumer Fraud Claim

Plaintiff further appears to allege fraudulent concealment based upon a consumer fraud
claim under N.J.S. 56:8-2, the New Jersey Consumer Fraud Act (“NJCFA”). To state a claim
under the NJCFA, “a plaintiff must allege

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: (I) unlawful conduct by the defendant[]; (2) an

ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendant[’sJ
unlawful conduct and the plaintiffs ascertainable loss.” N.J Citizen Action v. Schering-Plough Corp.,
367 N.J. Super. 8, 12-13 (App. Div. 2003). Complaints under the NJCFA “alleging fraud [must] set
forth the ‘particulars of the wrong, with dates and items if necessary.

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.“

See Hoffman v. Hampshire

Labs, Inc., 405 N.J. Super. 105, 112 (App. Div. 2009) (“Because a claim under the CFA is essentially
a fraud claim, the rule requires that such claims be pled with specificity to the extent practicable.”). It
is unclear from the SAC if the basis for Plaintiffs NJCFA claim is the alleged spoliation or some
other fraudulent failure to disclose. To the extent that Plaintiffs NJCFA claim is based on the
alleged spoliation, the Court will dismiss Plaintiffs claim for the aforementioned reasons. To the
extent that there is an alternate basis for Plaintiffs NJCFA claim, Plaintiff fails to allege any
alternatives or any other unlawful conduct. As such, Plaintiff has failed to articulate any facts
entitling him to relief for fraudulent concealment based upon the NJCFA, and the Court will
dismiss Plaintiffs claim.
C.

Remaining Claims

Plaintiffs remaining allegations of fraudulent concealment appear to focus on facts
repeated from the Amended Complaint regarding the assignment of the mortgage and ‘robo
signers.” (ECF No. 28 at 9-10). As aforementioned, the Court previously dismissed PLaintiffs
claim for failure to meet the heightened pleading requirement of Rule 9(b). (ECF Nos. 14 at 1718, 26 at 3). Plaintiffs SAC similarly fails to meet those requirements. As such, Plaintiff has
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failed to articulate any facts entitling him to relief for fraudulent concealment based upon the
assignment and “robo-signers,” and the Court will dismiss Plaintiffs claim.
V.

CONCLUSION
for the foregoing reasons, Defendant’s Motion to Dismiss is granted.

To the extent

Plaintiff can cure the pleading deficiencies by way of amendment, he may file a third amended
complaint within thirty (30) days of the date of this Opinion. Plaintiff is reminded, pursuant to the
stipulation and order dismissing with prejudice all claims against Ameriquest, (ECF No. 35), that
any future pleading by Plaintiff shall not include Ameriquest as a defendant. An appropriate Order
follows this Opinion.

DATED: October 25, 2017

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

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