LEON v. FEDERAL HOME LOAN MORTGAGE CORPORATION et al

Filing 10

OPINION AND ORDER terminating 7 Motion to Dismiss; Plaintiff's response (ECF no. 8), treated as a motion to amend the complaint, is GRANTED; Plaintiff shall, within 30 days after the date of this Order, file her amended complaint. Defendant shall answer or move in response. Signed by Judge Kevin McNulty on 3/10/2016. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LETICIA LEON,
Civ. No. 15-cv-1193 (KM)

Plaintiff,
V.

MEMORANDUM OPINION & ORDER

FEDERAL HOME LOAN MORTGAGE
CORPORATION, WELLS FARGO
BANK, N.A., JOHN DOES 1-10,
Defendants.
The plaintiff, Leticia Leon, who has been involved in a state court
mortgage foreclosure action, has filed a 63-page complaint in a form that
already is very familiar to the Court from other cases. (ECF no. 1) Essentially it
attacks the standing of the defendants (plaintiffs in the state action) to pursue
the foreclosure, but does so in the guise of federal causes of action. It seeks a
declaratory judgment that defendants are not holders in due course and have
not complied with various preconditions to foreclosure; an injunction against
any sheriff’s sale; and to quiet title (i.e., to declare plaintiff the owner, lien-free,
of the property); negligence per se; accounting; breach of the covenant of good
faith and fair dealing; breach of fiduciary duty; wrongful foreclosure; violation
of RESPA; violation of HOEPA; fraud in the concealment; intentional infliction
of emotional distress; and slander of title.
The defendants, Federal Home Loan Mortgage Corporation (“Freddie
Mac”) and Wells Fargo Bank, N.A. (“Wells Fargo”), have filed a motion to
dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). (ECF no. 7)
Plaintiff has responded to the motion by seeking leave to amend her
complaint. (ECF no. 8) She states that she wishes to drop most of the causes of
action, “both as a matter of law and due to the Defendants’ contention that

several causes are either moot or not claims for relief.” (ECF no. 8 at 2) The
claims she wishes to remove are listed thus:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Negligence
Accounting
Breach of Fiduciary Claim
Wrongful Foreclosure Claim
Intentional Infliction of Emotional Distress Claim
Quiet Title Claim
Slander of Title
Declaratory Claim
Injunctive Relief Claim

(IcL) By the Court’s reckoning, that would leave breach of the covenant of good
faith and fair dealing; violation of RESPA; violation of HOEPA; and fraud in the
concealment.
The plaintiff suggests that she may wish to add allegations that would
save certain claims from dismissal based on the statute of limitations. She
states further that she will, if permitted, plead fraud with more particularity.
I will treat this as a motion to amend the complaint. Such motions are
granted “freely,” Fed. R. Civ. P. 15(a)(2), and no party should be penalized for
recognizing and conceding weaknesses in the complaint pointed out by the
opposing party. Plaintiff’s original complaint was voluminous, and the
defendants’ motion to dismiss is the same. This pro se plaintiff, however, has
shown an admirable willingness to pare down her allegations to those which
she feels may have the best chance of success, and to amend perceived flaws.
Her concession renders much of defendant’s motion moot. While plaintiff has
not attached a proposed amended pleading, I will excuse that lapse and permit
her to file, within 30 days, an amended complaint.

ORDER
IT IS THEREFORE this 10th day of March, 2016,
ORDERED as follows:
1.

Defendants’ motion to dismiss the complaint (ECF no. 7; see also

response, ECF no. 8, and reply, ECF no. 9) is ADMINISTRATIVELY
TERMINATED.
2.

Plaintiff’s response (ECF no. 8), treated as a motion to amend the

complaint, is GRANTED.
3.

Plaintiff shall, within 30 days after the date of this Order, file her

amended complaint. Defendant shall answer or move in response.

‘AL /L1(P\J/9-(
KEVIN MCNULTY
United States District Judge