MATURO v. BANK OF AMERICA, N.A. et al

Filing 20

OPINION. Signed by Judge Claire C. Cecchi on 2/27/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARLENE MATURO,

Civil Action No.: 16-3 50 (CCC)
Plaintiff,

OPINION
V.

BANK OF AMERICA, N.A.; FEDERAL
NATIONAL MORTGAGE ASSOCIATION;:
MORTGAGE
ELECTRONIC
REGISTRATION SYSTEMS, INC.; AND:
UNKNOWN JOHN DOE 1 TO 100,
INCLUSIVE,

Defendants.
CECCHI, District Judge.
I.

INTRODUCTION

This matter comes before the Court by way of the motion filed by Defendants Bank of
America, N.A. (“BANA”), federal National Mortgage Association (“Fannie Mae”), and Mortgage
Electronic Registration Systems, Inc. (“MERS”) (collectively, “Defendants”) to dismiss pro se
Plaintiff Marlene Maturo’ s (“Plaintiff’) Complaint for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). ECF No. 13. Jurisdiction is proper pursuant to 28 U.S.C.
133 1, 1332. Venue is proper pursuant to 28 U.S.C.

§

§ 1391. No oral argument was heard pursuant

to federal Rule of Civil Procedure 78. For the reasons discussed below, Defendants’ motion to
dismiss is GRANTED.

II.

BACKGROUND

The following facts are accepted as true for purposes of the instant motion.1 On November
10, 2006, Plaintiff executed a promissory note (the “Note”) in exchange for a loan in the amount
of $360,000.00 (the “Loan”) in favor of Stanley Capital Mortgage Company (“Stanley”), not a
party to this suit.

$ Complaint (“Compi.”) ¶ 14, ECF No.

1; see also Saydah Dccl.

¶ 3, Ex.

A,

ECF No. 13-2 at 5-9. Plaintiff secured the Note with a mortgage (the “Mortgage”) on the subject
property located at 19 Faber Place, Nutley, New Jersey (the “Property”) in favor of Defendant
MERS, solely in its capacity as nominee for Stanley and its successors and assigns. Compl.

¶ 14;

ECF No. 13-2 at 11-27. Both the Note and the Mortgage include the terms and conditions, and
both are signed or initialed by Plaintiff on each page. ECF No. 13-2 at 5-27. Plaintiff also executed
a secondary mortgage loan in the amount of $90,000 also secured by the November 10, 2006
Mortgage. ECF No. 13-2 at 26.

1

A court may consider “exhibits attached to the complaint[,] matters ofpublic record,” and
documents “integral to or explicitly relied upon in the complaint.” See Schmidt v. Skolas, 770
F.3d 241, 249 (3d Cir. 2014) (internal quotation marks and emphasis omitted). As a matter of
New Jersey law, the recording and assignment of a mortgage are matters ofpublic record. N.J.S.A.
46:26A-2; N.J.S.A. 46:26A-12; see also Cox v. RKA Corp., 164 N.J. 487, 753 A.2d 1112, 1117
(N.J. 2000) (holding that “parties are generally charged with constructive notice of instruments
that are properly recorded”). Plaintiffs Complaint hinges on the Mortgage and assignment of said
Mortgage, making the Mortgage and all documents assigning the Mortgage integral. Notably,
Plaintiff’s assertions do not dispute the authenticity of any documents attached by Defendants.
$.ç Pension Ben. Guar. Corp. v. White Consol. Indus., 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.”). Therefore, the Note, Mortgage, and the recording
and assignment of the Mortgage as provided by Defendants as exhibits to their moving papers are
considered for purposes of this motion because they are part of the public record and integral to
the Complaint.
2

The Mortgage was assigned as follows. On January 11, 2008, MER$ in its capacity as
nominee for Stanley assigned the Mortgage to Countrywide Home Loans, Inc. (“Countrywide”).
ECF No. 13-2 at 29-30. On March 27, 2015, Countrywide recorded its assignment of the Mortgage
to BANA.2 ECF No. 13-2 at 33. On April 23, 2015, BANA recorded its assignment of the
Mortgage to Fannie Mae. ECF No. 13-2 at 3 8-39.
The foreclosure action proceeded as follows. On August 1, 2007 or January 14, 2008,
Plaintiff defaulted on the Mortgage.3 ECF No. 13-1 at 7. On or about January 15, 2008, BANA
brought a foreclosure action in the Superior Court of New Jersey.4 Id. On July 15, 2014, the
Superior Court entered an amended final judgment against Plaintiff. ECF No. 13-2 at 44-45. On
April 17, 2015, the Superior Court dismissed Plaintiffs “Chapter 31 [sicJ bankruptcy petition.”
Id. at 45. On October 13, 2015, the Superior Court terminated Plaintiffs Chapter 7 bankruptcy
petition. Id. A Sheriffs Sale was ultimately scheduled for and occurred on November 10, 2015,
at which time the Property was sold. ECF No. 13-2 at 44-46. Fannie Mae purchased the Property
for $1j00. ECF No. 13-2 at 41. On December 18, 2015, the Superior Court of New Jersey denied
Plaintiffs motion to vacate the Sheriffs Sale. Id.
On January 19, 2016, Plaintiff filed her Complaint in this Court against Defendants alleging
the following claims: Lack of Standing/Wrongful Foreclosure (Count I); Fraud in the Concealment
(Count II); Fraud in the Inducement (Count III); Intentional Infliction of Emotional Distress (Count
IV); Slander of Title (Count V); Quiet Title (Count VI); Declaratory Relief (Count VII); Violation

2

In 2008, BANA acquired Countrywide.
Defendants’ moving papers provide January 14, 2008 as the date of default, but
Defendants’ moving papers also include a Superior Court order dated December 18, 2015 that
states that Plaintiff defaulted on the Mortgage on August 1, 2007. ECF No. 13-2 at 44. For
purposes of the instant motion, the Court makes note of both dates.
The state court action lists BANA as plaintiff.
3

of the Truth in Lending Act (“TILA”) and Violation of the Home Ownership Equity Protection
Act (“HOEPA”) (Count VIII); Violation of Real Estate Procedures Act (“RESPA”) (Count IX);
and Rescission (Count X). ECF No. 1.
On April 15, 2016, Defendants filed the instant Motion to Dismiss. ECF No. 13. On April
27, 2016, Plaintiff filed a Motion to Strike Defendants’ Motion to Dismiss, Request for Discovery,
Subpoena to the Essex County Sheriff Armando Fontoura, Request for a Pre-Trial Hearing against
the listed Defendants, and a Request for a Temporary Restraining Order (the “Motion to Strike”).5
ECF No. 14. On May 12, 2016, Defendants filed a Response in Opposition to Plaintiffs Motion
to Strike. ECF No. 15. On October 25, 2016, the Court denied Plaintiffs Motion to Strike in its
entirety. ECF No. 19.
III.

LEGAL STANDARD
A.

Dismissal Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6)

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),
it “must contain sufficient factual mailer, accepted as true, to ‘state a claim to relief that is plausible
on its face.” Ashcrofi v. Igbal, 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. $çç 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. “A pleading that offers labels and conclusions will not do. Nor does

Plaintiff alleges in her Motion to Strike, which is more akin to an opposition to the motion
to dismiss, that the documents assigning the mortgage are void for the length of time between
assignments without providing any grounds for why the timing would void the assignment. ECF
No. 14 at 2. The Court treats the Motion to Strike as opposition to the instant motion.
4

a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Igbal,
556 U.S. at 678 (internal citations omitted). “[T]he 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.” Id.
“[A] complaint must do more than allege the plaintiff’s entitlement to relief A complaint
has to ‘show’ such entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d
Cir. 2009). As indicated above, a court may consider matters of public record and documents
integral to the complaint. See supra, at 2 n. 1.
B.

Liberal Pleading Standard for Pro Se Litigants

Because Plaintiff is apro se litigant, her filings are entitled to a liberal construction. See
Dluhos v. $trasberg, 321 F.3d 365, 369 (3d Cir. 2003).

This Court therefore has a special

obligation to discern both the nature of the relief and the appropriate law to govern her request.

14. Apro 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 has
mentioned it by name. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). 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 520-21); Bacon v. Minner, 229 F.
App’x 96, 100 (3d Cir. 2007).
IV.

DISCUSSION

The gravamen of Plaintiff’s Complaint is that Defendants do not have a right or interest in
the Note and/or Mortgage, because (1) Defendants knew or should have known at the origination
5

of the Note and/or Mortgage that Plaintiff would not be able to repay the loan, (2) Defendants
failed to provide the terms and conditions of the Note and/or Mortgage at origination, and (3)
Plaintiffs loan was improperly securitized and, relatedly, there are defects in the chain of title.
Compi. ¶ 12-13. Plaintiff asks the Court to vacate the Sheriffs Sale and quiet title of the Property
in favor of Plaintiff free from any liens, and award compensatory and punitive damages, rescission,
declaratory judgment, and injunctive relief.6 Id. at ¶J 11-13.
First, Plaintiff does not cite to law or statutory provisions entitling her to relief under the
theory that Defendants knew or should have known that she would be unable to repay the loan.
Even assuming such a duty exists, the lender of the Note and Mortgage whose due diligence
Plaintiff questions is Stanley, not a party to this action. ECF 13-2 at 5-27. Plaintiff executed the
Note and Mortgage with lender Stanley on November 10, 2006. Compl.

¶

14. MERS was the

nominee for Stanley for the Mortgage. ECF No. 13-2 at 29. MERS assigned the Mortgage to
Countrywide in 200$, and only subsequent to that date were BANA and Fannie Mae at all involved
with the Mortgage. Plaintiff fails to allege any facts that the Defendants
Fannie Mae

—

—

BANA, MERS, and

were in a position to determine Plaintiffs ability to pay. To the extent that MERS

was a party to the originating loan, its involvement was only as a nominee for Stanley. Plaintiff
fails to allege facts or law demonstrating that MERS breached a duty to determine Plaintiffs ability
to repay the loan.
Second, Plaintiffs assertion that Defendants failed to disclose the terms and conditions of
the Note and Mortgage also fails. Both the Note and the Mortgage include the terms and conditions

6

Although not clearly pled in her Complaint, Plaintiff appears to seek injunctive relief. In
her Motion to Strike, Plaintiff requested a temporary restraining order, however, solely through
the title of the motion. ECF No. 14 at 1. To the extent Plaintiff seeks injunctive relief, her request
was denied by Magistrate Judge James B. Clark on October 25, 2016. ECF No. 19.
6

and each page is signed or initialed by Plaintiff at the time of execution, establishing disclosure of
the terms and conditions to Plaintiff. Compi.

¶ 14; ECF No.

13-2 at 5-27.

Third, Plaintiff alleges that Defendants “cannot show proper receipt, possession, transfer,
negotiations, assignment and ownership of the borrower’s original Promissory Note and Mortgage,
resulting in imperfect security interests and claims.” Id. at ¶ 18. However, Defendants can and do
show proper securitization and chain of title by producing documentation. ECF 13-2 at 4-42; see
supra, at 2 n. 1.
As pointed out by Defendants in their moving papers, this Court has recently dismissed
another action, with prejudice, based on claims similar to Plaintiffs in this case, and arguments
similar as those set forth by Defendants in the instant motion. Espaillat v. Deutsche Bank Nat’l
Trust Co., 2:15-cv-00314-$DW-$CM, 2015 WL 2412153 (D.N.J. May 21, 2015); see also
Coleman v. Deutsche Bank Nat’l Trust Co., 2:15-cv-01080-JLL-JAD, 2015 WL 2226022 (D.N.J.
May 12, 2015).
With the above analysis in mind, the Court will address each of Plaintiffs claims below.
A.

Lack of Standing/Wrongful Foreclosure (Count I)

Defendants move to dismiss Plaintiffs claim for wrongful foreclosure, arguing that it fails
to state a cognizable claim. The gist of Plaintiffs claim in Count One is her assertion that none of
the Defendants had standing to foreclose on the Property, see Compl. ¶J 43-57, and, therefore, the
foreclosure on the Property by Defendants is null and void. Plaintiff asks that she retain title to
the Property, and that the Mortgage be held “in beneficiaries’ name” during the pendency of this
litigation.
Plaintiff has not identified any federal or state law that provides grounds for a “wrongful

7

foreclosure” cause of action.7 To the contrary, “[i]n New Jersey, ‘wrongful foreclosure’ is not a
recognized cause of action.” Vassallo v. Bank of N.Y., No. 15-3227, 2016 U.S. Dist. LEXIS
47895, at *16 (D.N.J. Apr. 2, 2016); see

Gorodeski v. U.S. Bank N.A., No. 15-2271, 2016

U.S. Dist. LEXIS 2862, at *16 (D.N.J. Jan. 11, 2016) (“[T]he Court is unaware of any such
independent claim under New Jersey state law.”). To the extent Plaintiff challenges the foreclosure
on standing grounds, the party which foreclosed, Fannie Mae, had standing to foreclose on the
Property by the terms of the Mortgage that BANA had properly assigned Fannie Mae. ECF No.
13-2 at 11-27, 38. Accordingly, the Court dismisses the first count without prejudice.
B.

Fraud in the Concealment (Count II) and Fraud in the Inducement (Count 111)

Defendants move to dismiss Plaintiffs claims for fraud in the concealment and fraud in
the inducement, arguing that they are barred by the statute of limitations and fail to state cognizable
claims. The Court agrees. In New Jersey, a six-year statute of limitations governs fraud claims.
N.J. Stat. Ann. 2A: 14-1. Plaintiff alleges that Defendants failed to disclose the material terms of
the original transaction executing Plaintiffs Note and Mortgage and securitization in November
2006, Compi.

¶J

115-13 1, and that Defendants misrepresented to the Superior Court that they had

standing to foreclose. Compl.

¶ 69.

These claims stem from the execution and assignment of the

Mortgage and commencement of the foreclosure, rendering the allegedly improper conduct
discoverable upon occurrence of the transaction on November 10, 2006 and the foreclosure action

Plaintiff states, “it is well established state and Federal law that the assignment of a
Mortgage does not automatically assign the underlying promissory Note and right to be paid and
the security interest is incident of the debt.” Comp. ¶ 50, ECF No. 1 at 11. The Court finds this
insufficient in identifying the legal grounds for finding the foreclosure of the Property invalid.
Plaintiff asserts that the foreclosure action was “supported by false or fraudulent documents,” yet
does not identify which documents she is referencing or any evidence. Compi. ¶ 54, ECF No. 1 at
12; ECF 13-1 at 44-49.
8

filed on January 14, 2008. Given that Plaintiff filed her Complaint on January 16, 2015, her fraud
claims are barred by the six-year statute of limitations. See Coleman, 2015 WL 2226022, at *14.
Plaintiff also fails to state a cognizable claim for fraud. Plaintiff alleges in Count Two that
Defendants “concealed the fact that: (1) Financial Incentives were paid; (2) existence of Credit
Enhancement Agreements, and (3) existence of Acquisition Provisions” and “that Borrower’s loan
changed in character inasmuch as no single party would hold the Note” having a “materially
negative effect on Plaintiffthat was known by Defendant but not disclosed.” Compi. ¶ 59. Plaintiff
alleges in Count Three that Defendants intentionally misrepresented that they were the owner(s)
of the Note and beneficiary of the Mortgage. Id.

¶ 69. Based on these allegations Plaintiff asserts

that “Defendants were attempting to collect on a debt to which they have no legal, equitable, or
pecuniary interest in.”

Ici

When asserting fraud claims, a “plaintiffmust satisfy the heightened pleading requirements
of Federal Rule of Civil Procedure 9(b).” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1417 (3d Cir. 1997). Rule 9(b) requires that, “the circumstances constituting fraud or mistake shall
be stated with particularity.” Id. (internal quotation marks omitted). To meet this requirement,
the plaintiff must plead or allege the “date, time and place of the alleged fraud or otherwise inject
precision or some measure of substantiation into a fraud allegation.” Frederico v. Home Depot,
507 F.3d 188, 200 (3d Cir. 2007). “Malice, intent, knowledge, and other conditions of a person’s
mind may be alleged generally.” Fed. R. Civ. P. 9(b). “To establish a common-law fraud claim,
a plaintiff must prove: (1) a material misrepresentation of a presently existing or past fact; (2)
knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it;
(4) reasonable reliance thereon by the other person; and (5) resulting damages.” Coleman, 2015
WE 2226022, at *7 (D.N.J. May 12, 2015). “Thus, basic tenets of pleading fraud in New Jersey
9

requires [sic] Plaintiff to state the ‘who, what, when, and where’ details of the alleged fraud.” Id.
(complaint dismissed where it alleged “the general content of the representations,” but did not
specify “who the speakers were.

.

.

or who received the information”).

Here, Plaintiffs fraud claims fail to state a claim for numerous reasons. Plaintiff failed to
plead or identify any specific, fraudulent assignments or conduct. $.ç Silva v. Fannie Mae, 2015
U.S. Dist. LEXIS 171283, at *8..9. The allegedly concealed facts are not material as Plaintiff failed
to allege that Defendants altered the bargained-for terms of the Note and Mortgage. Id. Plaintiff
does not adequately allege that she was damaged as a result of any alleged securitization. Id.
Additionally, Plaintiff has not identified any duty that would require Defendants to disclose the
alleged post-closing securitization of the loan. $çç United Jersey Bank v. Kensey, 306 N.J. Super.
540, 552 (App. Div. 1997) (a lender-creditor relationship in New Jersey is not a fiduciary
relationship and is considered in essence adversarial). Accordingly, the Court dismisses the second
and third counts without prejudice.
C.

Intentional Inifiction of Emotional Distress (Count IV)

Defendants move to dismiss Plaintiffs claim for intentional infliction of emotional
distress, arguing that it is barred by the economic loss doctrine, and fails to state a cognizable
claim. The Court agrees. The economic loss doctrine “prohibits plaintiffs from recovering in tort
economic losses to which their entitlement only flows from a contract.” Duquesne Light Co. v.
Westinghouse Elec. Co., 66 F.3d 604, 618 (3d Cir. 1995). Here, Plaintiffs claim for intentional
infliction of emotional distress and bad faith are based on a contractual relationship, i.e., the Note

10

and Mortgage.8 See Coleman, 2015 WL 2226022, at *4 and 8. Therefore, Plaintiffs tort claims
against Defendants are barred as a matter of law.9
Accordingly, the Court dismisses the fourth count without prejudice.

8

Plaintiff appears to include a claim for breach of the implied covenant of good faith and
fair dealing, which is, as with Plaintiffs claim for infliction of emotional distress, also a tort-based
claim barred by the economic loss doctrine. Compl. ¶81; see Coleman, 2015 WL 2226022, at *4,
As to the merits, Plaintiffs claim for intentional infliction of emotional distress fails to
state a cognizable claim. Plaintiff alleges Defendants “intentionally, knowingly and recklessly
misrepresented” that they “were entitled to exercise the power of sale provision contained in the
Mortgage,” Compi. ¶ 78 and, “fraudulently foreclose[d] or claimed the right to foreclose” on the
Property. Id. at ¶ 79. Plaintiff alleges that in foreclosing, Defendants had “the specific intent of
inflicting emotional distress on the Plaintiff.” Icj at ¶ 80. To state a claim for intentional infliction
of emotional distress, a party must plead “intentional and outrageous conduct by the defendant,
proximate cause, and distress that is severe.” Taylorv. Metzger, 152 N.J. 490, 509 (1998) (citation
omitted). New Jersey sets a “high bar” for a plaintiff to establish extreme and outrageous conduct.
See Taveras v. Resorts Int’l Hotel, Inc., No. 07-4555, 2008 U.S. Dist. LEXIS 71670, at *18 (D.N.J.
Sept. 19, 2008). “Only where reasonable persons may differ is it for the jury, subject to the control
of the court, to determine whether the conduct alleged in this case is sufficiently extreme and
outrageous to warrant liability.” McConnell v. State Farm Mut. Ins. Co., 61 F. Supp. 2d 356, 363
(D.N.J. 1999) (internal quotation marks omitted). Thus, to succeed on a claim for intentional
infliction of emotional distress, a defendant’s conduct must be “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds çf decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.” Subbe-Hirt v. Baccigalupi, 94 F.3d 111, 114
(3d Cir. 1996).
Here, Defendants’ alleged conduct does not rise to the high bar required for a claim of
intentional infliction of emotional distress. See Diaz v. Bank ofN.Y., No. 15-1954, 2016 U.S. Dist.
LEXIS 2855, at *16..17 (D.N.J. Jan. 11, 2016) (holding that attempt to foreclose on property does
not support claim for intentional infliction of emotional distress because “attempting to collect a
debt does not rise to a level of outrageous conduct, especially under New Jersey’s high bar for
outrageous behavior”); see also Francis v. TD Bank, N.A., No. 12-7753, 2013 U.S. Dist. LEXIS
124416, at *18 (D.N.J. Aug. 30, 2013) (dismissing claim because allegation that defendant
foreclosed on plaintiff’s home was insufficient to state “outrageous” conduct), affd, 597 F. App’x
58 (3d Cir. 2014). Plaintiff alleges that she “did not default in the manner stated in the Notice of
Default” but does not contest that she did in fact default on the loan. Compi. ¶ 83.
Further, a plaintiff must show defendants “intend[ed] both to do the act and to produce
emotional distress.” Mudey v. United States, No. 09-1669, 2011 U.S. Dist. LEXIS 49712, at *2
(D.N.J. May 10, 2011) (citing Buckley v. Trenton Say. Fund Soc., 111 N.J. 355, 366, 544 A.2d
857 (1988)). Plaintiff attempts to support this claim with conclusory allegations that Defendants
failed to act in “good faith while attempting to collect on the subject debt,” Compi. ¶ 81, and acted
with the “specific intent of inflicting emotional distress,” Id. at ¶ 80, and that Defendants are
therefore liable. Plaintiffs conclusory allegations fail to state a cognizable claim.
11

D.

Slander of Title (Count V)

Defendants move to dismiss Plaintiff’s claim for slander of title, arguing that it fails to state
a coguizable claim. The Court agrees. To assert a cause of action for slander of title, a plaintiff
must allege that the defendants “falsely published an assertion concerning plaintiffs title which
caused special damages to the plaintiff and that defendant acted out of malice.” Stewart Title
Guar. Co. v. Greenlands Realty, LLC, 58 F. Supp. 2d 370, 388 (D.N.J. 1999) (quoting Lone v.
Brown, 199 N.J. Super. 420, 425 (App. Div. 1985)).
Here, Plaintiff alleges that Defendants falsely published “documents evidencing the
commencement ofjudicial foreclosure by a party who does not possess that right.” Compl.

¶ $7.

Plaintiff alleges that she has incurred expenses to clear title to the Property, that she has suffered
humiliation, mental anguish, anxiety, depression, emotional and physical distress, and is entitled
to punitive damages. Id. at

¶J

88-9 1, 93. Plaintiff alleges that these harms were a direct and

proximate result of Defendants’ conduct in posting, publishing, and recording said documents. Id.
at ¶J 88-91. Plaintiff makes the conclusory statement that Defendants had the requisite intent and
their conduct was “fraudulent, oppressive, and malicious[.]” Id. at ¶ 92-3.
Plaintiff fails to describe or allege what published documents are false or identify what
defamatory statements were contained in the published documents.

Plaintiffs conclusory

allegations that Defendants “disparaged Plaintiffs exclusive valid title” fails to state a claim. See
Diaz, 2016 U.S. Dist. LEXIS 2855, at *17.48.
Accordingly, the Court dismisses the fifth count without prejudice.
E.

Quiet Title (Count VI)

Defendants move to dismiss Plaintiffs claim to quiet title, arguing that Plaintiff cannot
establish that she holds a superior title to the Property over any Defendant. The Court agrees.
12

New Jersey’s quiet title statute allows a plaintiff to maintain an action to “clear up all doubts and
disputes concerning” competing claims to land. N.J. Stat. Ann.

§ 2A:62-1. In accordance with

the statute, a plaintiff should spell out the nature of the competing claims in her complaint.
Espinoza v. HSBC Bank, USA, Nat’l Ass’n, No. 12-4874, 2013 WL 1163506, at *3 (D.N.J. Mar.
19, 2013). In addition, a plaintiff must allege facts showing a defendant’s competing interest is
wrongful. English v. Fed. Nat’l Mortg. Ass’n, No. 13-2028, 2013 WL 6188572, at *3 (D.N.J.
Nov. 26, 2013).
Here, Plaintiff’s conclusory allegations questioning the ownership of the Mortgage are
insufficient to state a quiet title claim.

$ Schiano v. MBNA, No.

05-1771 JLL, 2013 WL

2452681, at *26 (D.N.J. Feb. 11, 2013) (dismissing the complaint and holding that plaintiffs’
allegations that they do not know the owner of their mortgage and that the assignments of their
mortgage are invalid are not sufficient to establish a quiet title action); English, 2013 WL 6188572,
at *2..4. Plaintiff fails to set forth any specific facts supporting the invalidity of the Note or
Mortgage and Plaintiff does not deny that she has not fully satisfied repayment of the Loan.
N.J.S.A. 2A:62-1; N.J. Court Rule 4:62-1; see also Vassallo, 2016 U.S. Dist. LEXIS 47895, at
*

11-12 (dismissing quiet title claim where Plaintiff did not dispute that “Plaintiff executed the

Note and Mortgage and that Plaintiff has not fully satisfied his loan repayment obligations [and]
Plaintiff does not plead how or why he has superior title to the property over Defendants under
those circumstances.”); Reyes v. Governmental Nat’l Mortg. Ass’n, No. 15-64, 2015 U.S. Dist.
LEXIS 66396, at *8 (D.N.J. May 21, 2015) (“[C]onclusoiy allegations regarding the invalidity of
the loan documents are insufficient to state a quiet title claim.”); Cabeza, 2015 U.S. Dist. LEXIS
61874, at *7$ (dismissing quiet title claim based on conclusory allegation that assignment of
mortgage was invalid). Indeed, as discussed above, Defendants’ allegedly competing interest in
13

the property title is not “wrongful.” Therefore, Plaintiffs quiet title claim fails. Accordingly, the
Court dismisses the sixth count without prejudice.
F.

Declaratory Relief (Count VII)

Plaintiff argues that she is entitled to declaratory relief on the grounds that the transfers
andJor assignments of the Note and Mortgage were improper. Compl.

¶J 102-103.

Even if Defendants had engaged in the alleged violations, Plaintiff would not be entitled to
declaratory relief. Declaratory relief requires a live controversy of sufficient immediacy between
the parties. Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1170 (3d Cir. 1987). Here, there
is no pending foreclosure action to make these allegations relevant. The Sheriffs Sale occurred
on November 10, 2015, and the Superior Court of New Jersey denied Plaintiffs motion to vacate
the sale on December 18, 2015. ECF No. 13-2 at 41.
Accordingly, Plaintiff fails to set forth the necessary elements for declaratory relief. The
Court dismisses the seventh cause of action without prejudice.
G.

Violation of lILA and HOEPA (Count VIII), Violation of RESPA (Count IX),
and Rescission (Count X)

Plaintiff brings causes of action alleging violations of TILA, HOEPA, and RESPA, and
requesting rescission. Each cause of action is based on allegations relating to the origination of
Plaintiffs Note and Mortgage and their subsequent securitization in November 2006. Compi.

¶J 115-131. Claims for monetary damages under TILA are governed by a one-year statute of
limitations. 15 U$.C.

§ 1640(e). Claims for rescission under lILA are governed by a three-year

statute of limitations. jçj Claims for rescission under HOEPA are governed by a three-year statute
of limitations. 15 U.S.C.

§ 1635(f). Claims for violation of Section 2607 of RESPA are governed

by a one-year statute of limitations. 12 US.C.

§ 2614. Because all claims relate to and began to
14

accrue at the execution of the Note and Mortgage, and Plaintiff filed her Complaint on January 16,
2015, over eight years after the loan was originated, these claims are time-barred. The Court
dismisses the eighth, ninth, and tenth claims without prejudice.
V.

CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss is granted. To the extent
the pleading deficiencies can be cured by way of amendment, Plaintiff is hereby granted thirty (30)
days to file an amended complaint.

Dated: February 27, 2017

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

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