MARTINS v. NATIONSTAR MORTGAGE LLC et al

Filing 31

OPINION. Signed by Judge John Michael Vazquez on 4/6/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MANUEL J. MARTINS,

Plaintiff
Civil Action No. 15-7570
V.

OPINION
NATIONSTAR MORTGAGE LLC and
U.S. BANK, N.A., SUCCESSOR BY
MERGER TO FIRSTAR BANK, N.A.,
SUCCESSOR BY MERGER TO STAR
BANK, SUCCESSOR BY MERGER TO
GREAT FINANCIAL BANK, FSB,

Defendants.

John Michael Vazguez, U.S.D.J.
This matter comes before the Court through Nationstar Mortgage LLC’s (“Defendant”
or “Nationstar”) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). D.E.
23. Prose Plaintiff Manuel J. Martins’ (“Plaintiff’ or “Martins”) Complaint alleges causes of
action under the Fair Debt Collection Practices Act (“F DCPA”), identity theft, and the Truth in
Lending Act (“TILA”). The Court reviewed the submissions in support of and in opposition to
the motion, and considered the motion without oral argument pursuant to Fed. R. Civ. P. 78(b)
and L. Civ. R. 78.1(b). For the reasons stated below, Nationstar’s motion is granted.
I. BACKGROUND
Plaintiff alleges that he “entered into a collateral agreement known as a mortgage involving
his property” located in Newark, New Jersey. Complaint (“Compi.”) at 2 (D.E. 1). On October
26, 2007, the mortgage was recorded. Id. Plaintiff alleges that the deed to his property was secured

by a promissory note to Bank of America N.A., but Nationstar, who was not involved in the
mortgage agreement, “began attempting to foreclose under the terms of the mortgage, as if it were
the holder or in control of the note and mortgage.” Id. Plaintiff claims that Nationstar “has
somehow acquired the personal and banking infonnation of

.

.

[P]laintiff and has used that

information for [its] own personal gain and benefit without any permissible purpose.”

Id.

Plaintiff alleges that for the past year, Nationstar sent written communications to Plaintiff claiming
that “it was representing various parties having rights under the same mortgage.” Id. Plaintiff
asked Nationstar to provide verification of who these parties were because they were not named
in the mortgage. Id. at 2-3. Plaintiff also asked Nationstar how it obtained his personal and
banking information. Id. at 3. Nationstar never responded. Id.
Plaintiff avers that around February 2014, Nationstar and certain unnamed organizations
“owned and operated” by Nationstar “threatened [P]laintiff with the taking of [his] home and
money unless [he] provided certain financial personal and identifying information to [Nationstar].”
Id. at 14-15.

Plaintiff claims that Nationstar “deceived him into disclosing his personal

infornation” by making “it appear as if [Nationstar] had some legal rights to obtain more of
[P]Iaintiffs private information, when [Nationstar] did not have such rights.” Id. at 15. Plaintiff
alleges that Nationstar “made false promises that it was the holder of’ the note securing his
mortgage and “that it had rights to foreclose against the plaintiffs property.” Id. at 3.
According to a state-court judgment attached to the Complaint,’ it appears that on April
21, 2015, a judgment was entered against Plaintiff in favor of Nationstar due to Plaintiffs default
on his mortgage. D.E. 1-2 at 27-29. According to Nationstar’s moving papers, it scheduled a

In deciding a motion to dismiss a court generally may consider the “allegations contained in the
complaint, exhibits attached to the complaint and matters of public record.” Pension Ben. Gitar.
Corp. V. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
2

foreclosure sale on Plaintiffs property but it was adjourned multiple times due to Plaintiffs filing
of bankruptcy. D.E. 23-1 at 3. The bankruptcy petition was ultimately dismissed for procedural
deficiencies. Id. Nationstar represented that it has elected not to reschedule the foreclosure sale
until the immediate litigation is resolved. Id.
Plaintiff filed a complaint asserting causes of action against Nationstar for violating the
FDCPA, committing identity theft, and violating TILA. Compl. Nationstar moved to dismiss the
Complaint for failure to state a claim under fed. R. Civ. P. 12(b)(6), res jztdicata, the entire
controversy doctrine, and the Rooker-Feidman Doctrine. Plaintiff filed an opposition brief and
Nationstar filed a reply.2 Because Plaintiff fails to state a claim, the Court does not reach
Nationstar’s res jztdicata, entire controversy doctrine, and Rooker-feidman Doctrine arguments.
II. LEGAL STANDARD
A. Standard of Review

Rule 12(b)(6) permits a defendant to move to dismiss a count for “failure to state a claim
upon which relief can be granted.” To withstand a motion to dismiss under Rule 12(b)(6), a
plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Belt Ati.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible on its face when there is
enough factual content “that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the
plausibility standard “does not impose a probability requirement, it does require a pleading to show
more than a sheer possibility that a defendant has acted unlawfully.” Connelly

‘.

Lane Const.

Corp., 809 f.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a

2

Nationstar’s moving brief will be called “Def. Br.” and its reply will be called “Def. Rep.”
Plaintiffs opposition brief will be known as “P1. Opp.”
3

result, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will
uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, a district court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

A court, however, is “not

compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If,
after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no
relief could be granted under any set of facts consistent with the allegations, a court may dismiss
the complaint for failure to state a claim. Defazio

i

Leading Edge Recoveiy So/s., No. 10-2945,

2010 WL 5146765. at *1 (D.N.J. Dec. 13, 2010).
Because Plaintiff is proceeding pro Se, the Court construes the pleadings liberally and holds
him to a less stringent standard than those filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the “Court need not

.

.

.

credit a pro se plaintiffs ‘bald assertions’ or ‘legal

conclusions.” D’Agostino v. CECOMRDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J.
Sept. 10, 2010).
B. The FDCPA

Plaintiff alleges that Nationstar violated Sections 1 692e(4) and (5) as well as 1 692g(a) and
(b) of the FDCPA. Section 1692e provides that the following are violations:
(4) The representation or implication that nonpayment of any debt
will result in the arrest or imprisonment of any person or the seizure,
garnishment, attachment, or sale of any property or wages of any
person unless such action is lawful and the debt collector or creditor
intends to take such action.
(5) The threat to take any action that cannot legally be taken or that
is not intended to be taken.
4

15 U.S.C.

§ 1692e(4)-(5). Section 1692g provides as follows:

(a) Notice of debt; contents

Within five days after the initial communication with a consumer in
connection with the collection of any debt, a debt collector shall, unless the
following information is contained in the initial communication or the
consumer has paid the debt, send the consumer a written notice containing
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of
the notice, disputes the validity of the debt, or any portion thereof, the debt
will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing
within the thirty-day period that the debt, or any portion thereof, is disputed,
the debt collector will obtain verification of the debt or a copy ofajudgrnent
against the consumer and a copy of such verification or judgment will be
mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirtyday period, the debt collector will provide the consumer with the name and
address of the original creditor, if different from the current creditor.
(b) Disputed Debts

If the consumer notifies the debt collector in writing within the thirty-day
period described in subsection (a) of this section that the debt, or any portion
thereof, is disputed, or that the consumer requests the name and address of
the original creditor, the debt collector shall cease collection of the debt, or
any disputed portion thereof, until the debt collector obtains verification of
the debt or a copy of a judgment, or the name and address of the original
creditor, and a copy of such verification or judgment, or name and address
of the original creditor, is mailed to the consumer by the debt collector.
Collection activities and communications that do not otherwise violate this
subchapter may continue during the 30-day period referred to in subsection
(a) of this section unless the consumer has notified the debt collector in
writing that the debt, or any portion of the debt, is disputed or that the
consumer requests the name and address of the original creditor. Any
collection activities and communication during the 30-day period may not
overshadow or be inconsistent with the disclosure of the consumer’s right
to dispute the debt or request the name and address of the original creditor.
5

Here, Plaintiff fails to state a cause of action under the FDCPA. In regard to Section
1692e(4), Plaintiff does not allege that Nationstar made a “representation or implication that
nonpayment of any debt will result in arrest or imprisonment.” See 15 U.S.C.

§ 1692e(4).

Moreover, Plaintiff may not claim that the foreclosure action was unlawful in light of the state
court judgment authorizing Nationstar to foreclose on Plaintiffs property.

Additionally, the

Complaint fails to state a claim under Section 1 692e(5) because Plaintiff has not identified an
tin trniful threat made by Nationstar. Nationstar could lawfully foreclose on the property in light

of the state court judgment.
Plaintiff also fails to plausibly state a claim under Sections 1692g(a) and (b). Plaintiff does
not plead when the “initial communication” that would trigger the notice requirement under
Section 1 692g(a) took place. Therefore, the Court is unable to ascertain whether Nationstar failed
to comply with Section 1692(a)’s notice requirements within the five-day time frame. Similarly,
under Section 1692(b), Plaintiff has not pled sufficient facts to determine whether he disputed the
allegedly owed debt within thirty days of the receiving notice of the debt. Without knowing when
the “initial communication” took place or what Plaintiff alleges the “initial communication” to be,
it is unclear whether Plaintiff disputed the debt within the requisite time period. Moreover,
Plaintiffs September 29, 2015 letter disputing the “purported debt”3 was written more than five
months after the state court judgment was entered, authorizing Nationstar to foreclose on
Plaintiffs property. Therefore, to the extent Plaintiff is relying upon this letter, Plaintiffs attempt
to dispute the debt was not timely. For those reasons, Plaintiff fails to plausibly state a claim under
Sections 1692g(a) and (b).
C. Identity Theft

Plaintiff also does not identify the amount or nature of the “purported debt.”
6

Plaintiffs second cause of action against Nationstar is for identity theft. Plaintiff claims
that Nationstar acquired his personal information and used it for improper purposes such as
commencement of the foreclosure action. Compi. at 15. Although Plaintiff does not specify under
which statute he brings his claim for identify theft, a liberal reading of the complaint indicates that
he maybe proceeding under N.J.S.A. 2C:21-l7.4(a), which permits recovery of damages caused
by criminal identity theft. The New Jersey identity theft statute “permits a person who has suffered
‘any ascertainable loss of moneys or property, real or personal, as a result of the use of that person’s
personal identifying information,’ to bring a cause of action against the thief.” fogartv v.
Hàusehotd Finctnce Corp. III, No. 14-4525, 2015 WL $52071, at *14 (D.N.J. Feb. 25, 2015)
(quoting N.J.S.A. 2C:2 1-17.4(a)).
Plaintiffs claim fails because he has not identified any criminal identity theft committed
by Nationstar that resulted in an ascertainable loss. The only damages identified by Plaintiff
pertain to the foreclosure on his property that has not yet occurred. More importantly, and as noted
above, Nationstar obtained a valid judgment against Plaintiff permitting it to foreclose on his
property. A valid judgment is not a criminal act. Therefore, Plaintiff has not stated a valid cause
of action for identity theft.
D. TILA

Plaintiffs third cause of action against Nationstar alleges a violation of TILA for failing to
comply with Plaintiffs notice to rescind the mortgage loan on his property. The Court finds that,
as pled, Plaintiffs notice to rescind was untimely and dismisses this Count with prejudice.
“TILA generally permits a consumer borrower to rescind a loan transaction that results in
the creditor taking a security interest in the borrower’s principal dwelling.” In re Porter, 961 f.2d
1066, 1073 (3d Cir. 1992) (citing 15 U.S.C.

§ 1635(a)). The borrower has three days to rescind

7

the transaction.

15 U.S.C.

§ 1635(a). If, however, the creditor does not provide iiotice to the

borrower of his or her right to rescind and the forms to do so, the borrower may rescind the
transaction for up to three years. id. at

§ 1635(f);

in re Porter, 961 F.2d at 1073.

Here, Plaintiffs loan was originated on October 26, 2007. Compl. at 2. Plaintiff did not
provide a notice of recession to Nationstar until May 21, 2015. Compl. at 24. Even assuming that
Nationstar (or the original lender, who according to Plaintiff, was not Nationstar) did not provide
proper notice and forms to Plaintiff regarding his right to rescind the loan, the three-year rescission
period expired on October 26, 2010. Therefore, Plaintiff has failed to state a claim under TILA.
Because Plaintiffs TILA claim is clearly ban-ed from the face of the Complaint, this Count is
dismissed with prejudice. See Sztndhohn v. eSitites Hotels LLC, No. 14-1996, 2014 WL 5449975,

at *5 (D.N.J. Oct. 27, 2014) (dismissing with prejudice an untimely claim filed beyond the
limitations period).
III.

CONCLUSION

for the foregoing reasons, Nationstar’s motion to dismiss is granted. Counts One and
Three are dismissed without prejudice. Count five is dismissed with prejudice. Plaintiff shall
have thirty days to file an amended complaint re-pleading Counts One and Three. Failure to do so
shall result in Counts One and Three being dismissed with prejudice. With prejudice means that
Plaintiff will not be able to file a future case against Nationstar based on the facts or events alleged
in this matter. An appropriate Order accompanies this Opinion.
Dated: April 6, 2017

p
John

8

ichael Vazquez, c9.B)J.