HIGGINS v. WELLS FARGO BANK, N.A. et al
OPINION. Signed by Judge Claire C. Cecchi on 3/21/2017. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 15-1409
WELLS FARGO BANK, N.A., etaL,
CECCHI, District Judge.
This matter comes before the Court upon motion of Defendants Wells Fargo Bank N.A.
(“Wells Fargo”) and Select Portfolio Servicing, Inc. (“SPS”) (collectively “Moving Defendants”)
to dismiss pro se Plaintiff Javon Higgins’s (“Plaintiff’) Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). ECF No. 35. Plaintiff opposes the motion. ECF No. 41. Also before
the Court are Plaintiffs motions to restore electricity, for sanctions pursuant to Federal Rule of
Civil Procedure 11, to join Milstead and Associates, LLC (“Milstead”) as a defendant, and for
preliminary injunctive relief. ECF Nos. 36, 38, 45, 47. Moving Defendants opposed the motions
to restore electricity, for sanctions, and for preliminary injunctive relief. ECF No. 39, 48. No oral
argument was heard.
$ Fed. R. Civ. P. 78. For the reasons set forth below, Moving Defendants’
motion is granted, claims against the remaining Defendants1 are dismissed, and Plaintiffs motions
The remaining defendants are: City of Orange Township, City of Orange Police Department,
Orange Police Officers W. Coley and M. Jackson in their official capacity, City of Orange
Electrical Inspector Robert Piotrowski in his official capacity (collectively “Municipal
Defendants”), and Milstead.
Plaintiff Javan Higgins is a resident of the property located at 207 Heywood Aye, Orange,
New Jersey (the “Property”).
Fourth Amended Complaint2 (“Compl.”), ECF No. 34, at l.
Plaintiff’s former girlfriend, Anne Marie Ward, was the owner of the Property and executed a
mortgage on the Property in 2005. Brief in Support of Motion to Dismiss Plaintiffs Fourth
Amended Complaint (“Def. Mot.”), ECF No. 35 at 2. The Complaint states Plaintiff and Ms.
Ward executed a lease with an option to buy and a quitclaim deed, giving Plaintiff and his company
an interest in the Property. Compl.
A defaultjudgment in a foreclosure action was entered against Ms. Ward on June 16, 2008.
Def. Mot. at 2. On March 6, 2009, following a Sheriffs sale, a Sheriffs Deed was delivered to
Defendant Wells Fargo, as Trustee, on behalf of the Certificate holders of Secured Asset Backed
Receivables LLC Trust 2005-fR3, Mortgage Pass-Through Certificates, Series 2005-FR3 (the
“Trust”). Def. Mot. at 1, Ex. 2. SPS is the loan servicer of the Trust. Def. Mot. at 2. Despite
this sale, Plaintiff has remained on the property. Def. Mot. at 3.
Plaintiff filed eight separate bankruptcy petitions between 2009 and 2015. Def. Mot. at 5.
The record indicates Plaintiff did not file his Third Amended Complaint, although it was
submitted as a proposal to the Court.
ECF No. 20. This Opinion will reference the Complaint
filed on April 6, 2016 as the Fourth Amended Complaint.
The Complaint contains both numbered and unnumbered paragraphs. For purposes of this
opinion, the Court will refer to page numbers for the unnumbered paragraphs.
In his Reply Brief, Plaintiff “concedes the procedural history as stated by Defendants.” Amended
Reply to Motion to Dismiss (“P1. R.”), ECF No. 41 at 2.
Plaintiff does not dispute the authenticity of any documents attached by Defendants. The Court
will consider these documents for the purpose of Moving Defendants’ motion.
Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (“[A] court may
consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to
dismiss if the plaintiffs claims are based on the document. Otherwise, a plaintiff with a legally
deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document
on which it relied.”).
Plaintiff also filed his first federal complaint regarding the foreclosure action in this district in
2013. See Higgins v. Milsted & Associates, LLC, No. 14-cv-5917-MCA-LDW (D.N.J. May 19,
2016). Judge Madeline Cox Arleo dismissed that action with prejudice in May 2016. See id. ECF
Plaintiff initiated this action against Moving Defendants on February 24, 2015, alleging
Defendant Wells Fargo failed to provide electricity to the Property. ECF No. 1. Additionally,
Plaintiff filed a state court action, docketed in the Superior Court of New Jersey, Essex County, at
Case No. DC-3526-15 (the “State Action”). Def. Mot. at 3. Plaintiff filed his First Amended
Complaint on June 5, 2015, in which he named the Municipal Defendants and Milstead, and his
Second Amended Complaint on July 6, 2015. ECF Nos. 12, 15.
In July and August 2015, Moving Defendants and Municipal Defendants filed independent
motions to dismiss the Second Amended Complaint. ECF Nos. 16, 19. On September 29, 2015
Plaintiff filed a Motion for Leave to File an Amended Complaint, to which he attached his
proposed Third Amended Complaint. ECF No. 20. The Court granted Plaintiffs motion on
February 29, 2016, and denied Defendants’ pending motions to dismiss as moot. ECF No. 26.
Plaintiff sought an extension of time to file with Judge Mark Falk, and filed the Fourth Amended
Complaint (“the Complaint”) on April 6,2016. ECF Nos. 31, 34.
Defendant Wells Fargo brought an eviction action against Plaintiff in Landlord Tenant
Court for nonpayment in 2015. Def. Mot. at 5. That action was stayed and dismissed without
prejudice because of Plaintiffs multiple bankruptcy filings. Id. Movants filed a second eviction
action on December 17, 2015. Id. The second eviction action proceeded to trial on March 7, 2016
in the Superior Court of New Jersey, Essex County. See id. at Ex. 5. During this proceeding, the
court granted possession of the Property to Defendant Wells Fargo. j at 27.
On March 3, 2016, Plaintiff filed a Motion to Stay in this Court, and on March 15, 2016,
he filed a Motion for an Order to Show Cause. ECF Nos. 27, 29. On March 31, 2016, this Court
denied both of Plaintiffs motions. ECF No. 33. On April 2$, 2016, Moving Defendants filed the
instant motion to dismiss. Municipal Defendants and Milstead have not moved as to Plaintiffs
Fourth Amended Complaint.
Dismissal Pursuant to Federal Rule of Civil Procedure Ru]e 12(b)(6)
For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 1 2(b)(6),
it “must contain sufficient factual mailer, accepted as true, to ‘state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all wellpleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of
the non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
However, “the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “factual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. “A pleading that offers labels and conclusions will not do. Nor does a complaint
suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at
67$ (internal citations omitted).
Liberal Pleading Standard for Pro Se Litigants
Because Plaintiff is a pro se litigant, his filings are entitled to a liberal construction. See
Dluhos v. Strasberg, 321 f.3d 365, 369 (3d Cir. 2003). Apro se litigant’s complaint is held to
“less stringent standards than formal pleadings drafled by lawyers.” Haines v. Kerner, 404 U.S.
519, 520-21 (1972). This Court therefore has a special obligation to discern both the nature of the
relief and the appropriate law to govern his request. Id. Courts have a duty to construe pleadings
liberally and apply the applicable law, irrespective of whether apro se litigant has mentioned it by
name. MaYa v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013); Diuhos v. Strasberg,
321 f.3d 365, 369 (3d Cir. 2003); Higgins v. Beyer, 293 f.3d 683, 688 (3d Cir. 2002). 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) (citing Haines, 404 U.S. at 520-2 1).
While Plaintiff appears to bring this action complaining of a sale of the Property and
fraudulent conduct in the foreclosure action, it is unclear what causes of action he is asserting.
Liberally construing the Fourth Amended Complaint, it appears Plaintiff has identified three
federal causes of action: the Racketeer Influence and Corrupt Organizations Act (“RICO”), the
Fair Debt Collection Practices Act (“FDCPA”), and 42 U.S.C.
1983. However, even under a
As an initial matter, Plaintiff appears to challenge the foreclosure action based on the alleged
invalidity of the Mortgage Assignment. The Court notes Plaintiff lacks standing to challenge the
Mortgage assignment, because Plaintiff was neither a party to nor intended third-party beneficiary
of the pooi service agreement or assignments, and Plaintiff was not a party to the Mortgage. See
Gilarmo v. U.S. Bank NA ex rel. CSAB Mortgage Backed Trust 2006-1, 643 F. App’x 97, 100
(3d Cir. 2016) (agreeing with the “overwhelming majority of courts” that “a borrower in default
has no standing to challenge an assignment said to violate a pooling service agreement”); English
v. Fannie Mae, No. 13-2028, 2013 U.S. Dist. LEXIS 167906, at *10 (D.N.J. Nov. 26, 2013).
Alternatively, to the extent that Plaintiff may have standing to challenge the foreclosure action, the
Rooker-Feldman doctrine strips this Court of jurisdiction to grant such relief. See S. Washington
Ave., L.L.C. v. Wilentz, Goldman & Spitzer, P.A., 259 F. App’x 495, 498 (3d Cir. 2007) (“Under
the Rooker—Feidman doctrine, federal district courts lack subject matter jurisdiction over actions
in which relief is sought that would effectively reverse a state court decision or void its ruling.”
(internal citation and quotation marks omitted)). In light of the liberal pleading standard granted
to pro se litigants, the Court will also consider whether Plaintiff has sufficiently stated a claim.
liberal pleading standard, these claims have not been sufficiently plead.
Here, the Court cannot discern that Plaintiff alleged any of the specific elements required
to state a RICO claim. Pursuant to 1$ U.S.C.
1962(c), it is unlawful for “any person’ who is
employed by or ‘associated with any enterprise’ affecting interstate commerce to ‘participate,
directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering
activity.” In re Schering-Plough Corp. Intron/Temodar Consumer Class Action, 678 f.3d 235,
245 (3d Cir. 2012). Here, as Plaintiff has not alleged any of the required elements, Plaintiff fails
to sufficiently state a RICO claim.
Plaintiff also fails to state a claim under the FDCPA. In relevant part, the FDCPA provides
that a “debt collector may not use unfair or unconscionable means to collect or attempt to collect
any debt.” Barrows v. Chase Manhattan Mortg. Corp., 465 F. Supp. 2d 347, 353-54 (D.N.J. 2006)
(citing 15 U.S.C.
16920. Here, Plaintiff has not alleged the Defendants were debt collectors,
attempting to collect debts owed to another.
1 692(a)(6). Accordingly, Plaintiff
has failed to state a claim under the FDCPA.
Further, Plaintiff fails to state a violation of § y9$3•7 Plaintiff appears to assert a violation
1983 on four bases: fourth Amendment, Substantive Due Process, Equal Protection, and a
Monell claim against the City. Plaintiff fails to state a cognizable claim under each theory.
First, Plaintiff appears to allege Officer Jackson violated his fourth Amendment rights by
It appears Plaintiff attempts to assert a § 1983 claim against the Municipal Defendants, who have
not moved to dismiss Plaintiffs Fourth Amended Complaint. However, as Plaintiff filed his
complaint informa pauperis, pursuant to 28 U.S.C § l915(e)(2), the Court “must dismiss, at the
earliest practicable time, certain in forma pauperis
actions that are frivolous, malicious, [or]
fail to state a claim
McNair v. 3d. of Chosen Freeholders, No. 10-1175, 2010 U.S. Dist.
LEXIS 127911, at *2..3 (D.N.J. Dec. 3, 2010). See also Thompson v. Eva’s Vill. & Sheltering
Program, 377 F. App’x 141, 141 (3d Cir. 2010) (affirming a decision to dismiss a non-prisoner
plaintiffs complaint pursuant to 28 U.S.C. § 1915(e)(2)).
conspiring “with Ms. Shihnaude Bontemps to break into my home, take property, and assault my
guest.” Compi. at 2$. Plaintiff fails to state a cognizable claim as the allegation provides nothing
more than mere labels and legal conclusions.
Second, Plaintiff appears to allege Officers Jackson and Cooley violated his Substantive
Due Process rights in that they failed to “enforce the law” which resulted in Ms. Bontemps being
allowed “to flee to New York State and file a bogus domestic violence claim.”
at 29. The
Complaint also alleges the officers failed to “make a complaint or issue an amber alert” for the
abduction of Plaintiffs children by their mother. j at 30. The United States Supreme Court has
been clear, however, that “nothing in the language of the Due Process clause itself requires the
State to protect the life, liberty, and property of its citizens against invasion by private actors.”
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). Whereas here,
Plaintiffs alleged injuries resulted from Ms. Bontemps and the mother of Plaintiffs children,
Plaintiff cannot state a claim for relief, as the officers were not required under the Due Process
Clause to protect Plaintiffs life, liberty, and property against invasion by private actors.
Third, whereas here, Plaintiff did not allege Municipal Defendants were motivated by
Plaintiffs membership in a protected class, the only claim available under the Equal Protection
Clause is that he “was arbitrarily singled out for this treatment as a ‘class of one.” Chavaniaga
v. N.J. Dep’t of Corr., 806 F.3d 210, 233 (3d Cir. 2015). A “class of one” equal protection claim
arises, “where the plaintiff alleges that [he] has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Willowbrook
v. Olech, 52$ U.S. 562, 564 (2000) (citations omitted). Here, Plaintiff fails to allege he has been
treated differently from others similarly situated, and thus fails to state a cognizable claim under
an equal protection theory.
fourth, Plaintiff alleges the City of Orange has “maintained a policy and practice of
unlawful interference with [Plaintiff sJ due process and equal protection rights because it has
allowed employees to disregard legislative enactments and statutory mandates in order to
accomplish their own arbitrary and self-directed agendas.” Under Monell v. N.Y. City Department
of Social Services., 436 U.S. 65$ (197$), a city can be liable under
1983 only for an
unconstitutional policy or custom carried out by its employees. The mere conclusory allegation
that the City of Orange maintained a policy which violated Plaintiffs civil rights is insufficient to
state a claim upon which relief can be granted.
Accordingly, Plaintiff fails to sufficiently state a federal claim.
Subject Matter Jurisdiction
To the extent the facts alleged in the Fourth Amended Complaint give rise to state-law
claims, the Court declines to exercise supplemental jurisdiction. The basic statutory grant of
federal court subject-matterjurisdiction provides for federal-question jurisdiction and for diversity
of citizenship jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006) (citing 2$ U.S.C.
1331, 1332). “A plaintiff properly invokes
1331 jurisdiction when she pleads a colorable
claim ‘arising under’ the Constitution or laws of the United States.” Id. Here, as Plaintiff failed
to state a cognizable federal claim the Court does not have federal question jurisdiction. To invoke
1332, Plaintiffmust state “a claim between parties of diverse citizenship that exceeds the required
jurisdictional amount, currently $ 75,000.” j Here, as Plaintiff cannot plead complete diversity
of citizenship, and does not plead any amount in controversy, the Court cannot consider this claim
under diversity jurisdiction. Further, the Court declines to exercise supplemental jurisdiction
pursuant to 28 U.S.C.
1367(c) over any remaining state-law claims arising in the Fourth
Amended Complaint. Accordingly, the Court dismisses Plaintiffs Fourth Amended Complaint in
its entirety for lack of subject matter jurisdiction.
Plaintiffs Motion to Join Milstead
Upon receiving notice that claims against Milstead would be dismissed pursuant to FRCP
4(m) for lack of service, Plaintiff filed a motion to join Milstead as a Defendant pursuant to FRCP
19 or 20. ECF No. 45. As Milstead was already joined in this action in Plaintiff’s Second
Amended Complaint, this motion is improper. See ECF No. 15. In the alternative, Plaintiff seeks
permission from the Court to allow late service upon Milstead. As the Court has dismissed the
Fourth Amended Complaint in its entirety, this request is moot.
Motion to Restore Electricity and for Preliminary Injunction
Plaintiff moves to restore electricity to the Property, which the Court construes as a request
for a preliminary injunction.8 ECF Nos. 36, 38.
Plaintiff further moves for a “preliminary
injunction to preserve the status quo,” which appears to request a stay of the sale of the Property.
ECF No. 47.
For a court to grant injunctive relief, a party must show: “(1) a likelihood of success on the
merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting
preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the
public interest favors such relief.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.
Plaintiff alleges the Property “was connected to electrical service,” and when he “missed
payment” the service was disconnected in 2014. ECF No. 38 at 14-15. Plaintiff “was later told he
needed an inspection by the City of Orange for restoration of services.” Id. Plaintiff has been
unable to receive the required permits from Wells Fargo because of its representation that Plaintiff
was not a tenant.
at 15. Plaintiff states “the question of tenancy is no longer an issue since”
SPS alleged Plaintiff is a tenant and owes the Trust over $100,000 in an eviction action. ; see
ECF No. 30, Ex. 7. Plaintiff further alleges that even after this, the “City of Orange still failed to
issue the permit allowing restoration of electrical services,” and “[t]here exists no reason not to
issue the required permit, except that the Township is inexplicably aiding [SPS’s] fraudulent cause
of stealing [Plaintiffs] home.”
2004). However, before a court may reach these issues, it must have subject matter jurisdiction
over the case.
Plaintiff appears to argue in each motion that Plaintiff is entitled to relief pursuant to his
claims under the FDCPA, RICO, fraud, and municipal ordinances. As explained, supra, this Court
no longer has federal question jurisdiction because Plaintiff has failed to state a federal claim and
Plaintiff has not alleged diversity jurisdiction.
jurisdiction pursuant to 2$ U.S.C.
The Court declines to exercise supplemental
§ 1367(c). Plaintiffs request for preliminary injunctions
pursuant to a municipal ordinance or common law fraud, therefore, are denied for lack of subject
Motion for Sanctions, ECF No. 38
Plaintiff alleges Moving Defendants should be sanctioned for their “deliberate and
continuing fraud upon this court.” ECF No. 3$ at 3-4 (emphasis deleted). Plaintiff appears to
support this contention with the same arguments and claims as stated in the Fourth Amended
As a preliminary matter, Moving Defendants correctly argue Plaintiff failed to comply with
Rule 1 1(c)(2). ECF No. 39 at 4 n.2. “The first step in a Rule 11 analysis is to determine whether
the party filing the Rule 11 motion complied with the ‘safe harbor’ provision of Rule 11 (c)(2).”
Ortiz v. Auto. Rentals, Inc., No. 09-3002, 2010 U.S. Dist. LEXIS $2590, at *5 (D.N.J. Aug. 10,
2010). “If the twenty-one day period is not provided, the motion must be denied.” In re Schaefer
Salt Recovery, Inc., 542 F.3d 90, 99 (3d Cir. 200$). As Plaintiff failed to provide the twenty-one
day period, the motion for sanctions is denied.
the extent Plaintiff moves for summary judgment pursuant to Rule 56, ECF No. 47, Plaintiffs
motion is denied as moot.
Moreover, the Court denies Plaintiffs motion for sanctions on the merits. The decision to
grant a motion for sanctions is within the discretion of the trial judge and is awarded under Rule
11 “only in the exceptional circumstances where a claim or motion is patently unmeritorious or
frivolous.” Goldenberg v. Indel, Inc., No. 09-5202, 2011 WL 1134454, at *2 (D.N.J. Mar. 25,
2011) (citing Watson v. City of Salem. 934 F. Supp. 643, 662 (D.N.J. 1995); Thomas & Betts
Corp. v. Richards Mfg. Co., 342 F. App’x 754, 762 (3d Cir. 2009). The standard used in the Third
Circuit to detennine when sanctions are appropriate is “reasonableness under the circumstances.”
Brubaker Kitchens, Inc. v. Brown, 280 F. App’x 174, 184 (3d Cir. 200$) (internal citations
omitted). Reasonableness is “an objective knowledge or belief at the time of filing a challenged
paper that the claim was well grounded in law and fact.” Ford Motor Co. v. Summit Products,
Inc., 930 F.2d 277, 289 (3d Cir. 1991).
As Moving Defendants have submitted documentation in support of their pleadings to the
Court, including the Mortgage, Sherriffs Deed, and transcripts of the eviction actions, the Court
finds their motions and filings to this Court are not patently without merit or frivolous.
Accordingly, Plaintiffs motion for sanctions is denied.
In responding to Plaintiffs motion for sanctions, Moving Defendants request that, as the
prevailing party, the Court award reasonable attorney’s fees incurred for the motion. ECF No. 39
at 7. Although the Court disagrees with Plaintiffs position,’° this Court “is reluctant to impose
severe sanctions upon apro se Plaintiff.” Ramirez v. UPS, No. 06-01042, 2011 U.S. Dist. LEXIS
120584, at *1445 (D.N.J. Oct. 19, 2011) (collecting cases). Given Plaintiffs prose status, the
The Court is also cognizant of a previous decision by Judge Arleo dismissing with prejudice a
complaint by Plaintiff based upon similar allegations, and Plaintiffs characterization of his filings
with this Court as “tactics for remaining in his home.” ECF No. 38 at 5.
Court finds Plaintiffs motion was not so frivolous as to warrant sanctions. See Kanter v. Scharf,
No. 13-3 157 (JLL), 2013 U.S. Dist. LEXIS 119809, at *22.23 (D.N.J. Aug. 23, 2013). However,
now that Plaintiff is advised of the federal pleading standards, the Court does “caution Plaintiff
against future filings in federal court with respect to the issues underlying the
Should Plaintiff file another such lawsuit, he will undoubtedly expose himself to
substantial sanctions.” Id.
For the reasons set forth above, Moving Defendants’ motion to dismiss is granted, and
Plaintiffs motions to join Milstead as a defendant, to restore electricity, for a preliminary
injunction, and for sanctions are denied, and the Fourth Amended Complaint is dismissed against
Municipal Defendants and Milstead pursuant to 28 U.S.C.
§ 1915(e)(2). Accordingly, Plaintiffs
federal claims for FDCPA, and federal RICO are dismissed with prejudice, the claim under
is dismissed without prejudice,11 and the remaining state-law claims are dismissed for lack of
subject matterjurisdiction. To the extent permitted by law, this decision does not preclude Plaintiff
from pursuing claims in state court. An appropriate Order accompanies this Opinion.
Date: March21, 2017
CLAIRE C. CECCHI, U.S.D.J.
While the Court questions the merits of any potential claim under § 1983, in light of the liberal
construction due to pro se litigants, the Court is not prepared to dismiss this claim with prejudice
at this time.
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