PURPURA v. JP MORGAN CHASE et al

Filing 66

OPINION. Signed by Judge John Michael Vazquez on 4/18/2018. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NICHOLAS E. PURPURA,
Plain ttff

Civil Action No. 16-3765
V.

JP MORGAN CHASE, ET AL.

OPINION

Defendants.

John Michael Vazguez, U.S.D.J.

This case arises from Plaintiffs claims that assignments of his 2005 mortgage loan, as well
as his 200$ loan modification, were unlawful. The Court previously dismissed Plaintiffs first
Complaint without prejudice. Plaintiff Nicholas Purpura (“Plaintiff’) then filed an Amended
Complaint. D.E. 44. The present matter comes before the Court on Defendants” motion to dismiss
Plaintiffs Amended Complaint.2 D.E. 47. Defendants move to dismiss with prejudice for lack of
subject matter jurisdiction pursuant to federal Rule of Civil Procedure 12(b)(l) and for failure to
state a claim pursuant to Rule 12(b)(6). This motion was decided without oral argument pursuant

Defendants include JPMorgan Chase & Co. (“Chase”), James Dimon, Dean Cooper, Erick Clark,
Glenn J. Mouridy, Chase Home Finance, LLC, Jane Doe, and John Doe, et al. (collectively,
“Defendants”).
2

Plaintiffs pro se Amended Complaint will be referred to hereinafter as “Am. Compl.” (D.E. 44);
Defendants’ brief in support of its motion to dismiss the amended complaint will be referred to
hereinafter as “Defs. Br.” (D.E. 47); Plaintiffs brief in opposition will be referred to hereinafter
as “P1. Opp. Br.” (D.E. 48); Defendants’ reply will be referred to hereinafter as “Defs. Reply”
(D.E. 49); Plaintiffs sur-reply will be referred to hereinafter as “P1. Resp.” (D.E. 50); Plaintiffs
motion for immediate judicial intervention will be referred to hereinafter as “P1. Motion” (D.E.
52); Defendants’ response in opposition to Plaintiffs motion will be referred to hereinafter as
“Defs. Resp. P1. Motion” (D.E. 53).

to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. The Court has considered the
parties’ submissions and grants Defendants’ motion to dismiss all counts with prejudice.
I. BACKGROUND3

On June 8, 2005, Plaintiff executed a Note and Mortgage in conjunction with a loan from
Washington Mutual Bank (“WaMu”) in the amount of $633,750.00 (the “Loan”). Am. Compi.,
Ex. 11. On September 25, 2008, Chase acquired certain assets and liabilities of WaMu, including
Plaintiffs Loan, from the Federal Deposit Insurance Corporation (“FDIC”), as receiver for
WaMu.5 Id. at 18. Plaintiff claims that Chase has “wrongfully claimed to own ‘certain assets’

The specific factual allegations in the Amended Complaint are, at times, unclear. However, a
somewhat more complete picture is made possible when considering the Amended Complaint in
conjunction with the exhibits attached to the pleading and attached to Defendants’ motion to
dismiss. When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in
the complaint. Fowler v. UPMC Shadyside, 57$ F.3d 203, 210 (3d Cir. 2009). Additionally, a
district court may consider “exhibits attached to the complaint and matters of public record” as
well as “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.” Pension Ben. Gitar. Corp. v. White
Consot. Indus., Inc., 99$ F.2d 1192, 1196 (3d Cir. 1993). Here, the Court derives the relevant
facts from Plaintiffs Amended Complaint, as well as the exhibits attached to the Amended
Complaint, Plaintiffs Brief in Opposition to the Motion to Dismiss (“P1. Opp. Br.”), and
Defendants’ motion to dismiss (“Defs. Br.”).
Plaintiffs Amended Complaint contains only two exhibits, as opposed to the thirteen exhibits
attached to the original Complaint. However, the two exhibits attached to the Amended Complaint
are labeled “Exhibit 1$” and “Exhibit 19” respectively, suggesting Plaintiff intended to incorporate
the other exhibits into his Amended Complaint. As such, because Plaintiff is proceeding pro se,
the Court accepts the earlier exhibits (attached in D.E. 1) as part of Plaintiffs Amended Complaint
(D.E. 44).
Plaintiff acknowledges Chase’s acquisition of certain assets and liabilities of WaMu, but contests
that his Loan was included. Plaintiff asserts this is a “presumption” because “Chase has offered
no proof that Plaintiffs loan was included in that purchase.” Am. Compi. at 2. In their brief,
Defendants cite to “Docket Entry 23-2, Declaration of Evan Sampson ¶ 2-4” to support this
factual assertion. Defs. Br. at 2. Mr. Sampson’s Declaration will be referred to hereinafier as
“Sampson Deci.” Specifically, Exhibit A is a copy of the order appointing the FDIC as receiver
for WaMu. Sampson Deci. at ¶ 2. Exhibit B is a copy of the letter from the FDIC accepting its
appointment as receiver for WaMu. Id. at ¶ 3. Exhibit C is a copy of the Purchase and Assumption
Agreement between JPMorgan Chase and the FDIC as receiver of WaMU, where JPMorgan Chase
2

(including Plaintiffs indebtedness)” because they were not properly assigned to Chase. Id. at 4.
Specifically, Plaintiff claims that “[g]ovemment records from SEC show the 10-K filings for
‘Washington Mutal, Inc.’

.

.

.

listed as having ceased existence on 4/4/2005” and “[WaMu] no

longer existed on the date of Plaintiffs contract.” Id. at 12. As such, according to Plaintiff, “the
contract did not legally exist, because the ‘Lender’ was a fiction.” Id. at 12.
By September 25, 2008, Plaintiffs loan was in default. Id. at 22. Defendants pinpoint the
date as September 1, 2008, when Plaintiff “fail[ed] to make a payment that became due and
owing.” Defs. Br. at 2; Sampson Decl. at

¶ 5. As a result, Plaintiff claims that he was “coerced

into signing [a] fraudulent ‘modification’ [of the mortgage agreement].” Am. Compl. at 21.
Defendants state that as a result of Plaintiffs default, Chase brought a foreclosure action in state
court. Defs. Br. at 3; Sampson DecI. at

¶

5. As a resolution to the case, Plaintiff and Chase

executed a Loan Modification Agreement in July 2010, which took effect on September 1, 2010.
Am. Compl., Ex. 12. Plaintiff alleges that, when he was in default, Chase “coerced Plaintiff, under
threat of eviction, to agree to the further unconscionable terms of the ‘modified’ loan.” Am.
Compi. at 5.
Plaintiff concludes that “Chase is a ‘stranger to his debt,’ has no agency/capacity/standing
to collect or foreclose, and Plaintiff has been forced to pay a party who is neither holder or an
entity for a holder, with legal right to his payments.” Id. at 25. Plaintiff indicates that he has
“suffered immense physical and emotional injury from the magnitude of the stress he has been

purchased “substantially all of the assets
Bank.” id. at ¶4.

...

and substantially all other liabilities of the Failed
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forced to live under.” Id. at 3. Finally, Plaintiff requests that all relief requested in the original
Complaint be granted. P1.

Opp. Br. at 15.6

H. PROCEDURAL HISTORY

On June 27, 2016, Plaintiff filed his original Complaint. D.E. 1. On August 23, 2016,
Defendants filed a motion to dismiss. D.E. 23. On March 24, 2017, the Court entered an Opinion
and Order (“Original Opinion” and “Dismissal Order”) dismissing the Complaint’s RICO, False
Claims Act (“FCA”), and Truth in Lending Act (“TILA”) claims without prejudice, and dismissing
all remaining claims with prejudice.7 D.E. 41, 42. Plaintiff was provided thirty days to file an
amended complaint as to the civil RICO, FCA, and TILA claims. D.E. 41, 42.
On April 20, 2017, Plaintiff filed an Amended Complaint. D.E. 44. In the Amended
Complaint, Plaintiff asserted the following counts: (1) a civil claim under the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 USC

§ 1961, et seq.; (2) a violation of the New Jersey

Consumer Fraud Act (the “NJCFA”), N.J.S.A. §56:8-1, etseq.; (3) a claim of common law fraud;
and (4) a claim of equitable estoppel.8

6

The relief requested in the Original Complaint included (1) granting a monetary award from each
Defendant, wholly and individually; (2) requiring Chase to return every principal and interest
payment since the loan was executed in 2005 with interest; (3) imposing Dodd-Frank penalties on
Chase; (4) awarding punitive damages; (5) awarding reasonable costs associated with the litigation
including legal expenses; and (6) demanding a recording of Plaintiffs mortgage as “satisfied” in
the Monmouth County recording office and granting quiet title.
The Court dismissed the following counts with prejudice: (1) violation of 18 USC §241:
Conspiracy Against Rights; (2) violation of 18 USC §242: Deprivation of Rights Under Color of
Law; (4) violation of 28 USC §1331 Federal Question; (6) violation of 15 USC §1629 Fair Debt
Collection Practices Act (“FDCPA”); (7) violation of the Real Estate Settlement Procedures Act
(“RESPA”); and (8) “white collar crime.” D.E. 41, 42.

‘

While Plaintiff does not formally number his claims, the Court will, for efficiency, refer to
these claims as follows: the RICO claim will be “Count One”; the CFA claim will be “Count
Two”; the common law fraud claim will be “Count Three”; and the equitable estoppel claim will
be “Count Four.”

4

On June 2, 2017, Defendants filed a motion to dismiss the Amended Complaint. D.E. 47.
On June 20, 2017, Plaintiff filed opposition, D.E. 48, to which Defendants replied, D.E. 49.
Plaintiff then filed another brief in opposition on June 27, 2017. D.E. 50. On July 24, 2017,
Plaintiff also filed a “Motion for Judicial Intervention,” D.E. 52, and Defendants filed opposition
on August 7, 2017. D.E. 53. Lastly, on November 1, 2017, Plaintiff filed a motion to strike and
request for sanctions. D.E. 61. On November 15, 2017, Defendants filed opposition. D.E. 62.
III. STANDARD OF REVIEW
a.

Rule 12(b)(1)

In deciding a Rule 12(b)(1) motion for lack of subject-matter jurisdiction, a court must first
determine whether the party presents a facial or factual attack because the distinction determines
how the pleading is reviewed. A facial attack “contests the sufficiency of the complaint because
of a defect on its face,” whereas a factual attack “asserts that the factual underpinnings of the basis
for jurisdiction fails to comport with the jurisdictional prerequisites.” Elbeco Inc. v. Nat ‘1 Ret.

fund, 12$ F. Supp. 3d $49, $54 (E.D. Pa. 2015) (quoting Moore v. Angie ‘s List, Inc.. 118 F. Supp.
3d $02, 806 (E.D. Pa. 2015)). When a party moves to dismiss prior to answering the complaint,
as is the case here, the motion is generally considered a facial attack. Bellocchio v. New Jersey
Dep ‘t ofEnvtl. Prot., 16 F. Supp. 3d 367, 373-74 (D.N.J. 2014) (citing Cardio-Med. Assocs., Ltd.
v. C’rozer-Chester Med. Ctr., 721 f.2d 6$, 75 (3d Cir. 1983)), aff’d, 602 F. App’x 876 (3d Cir.
2015). filing a motion to dismiss in lieu of filing an answer “assert[s] that [P]laintiffs complaint,
on its face, does not allege sufficient [facts]

...

to warrant the court in taking jurisdiction.” Cardio

Med. Assocs., 721 F.2d at 75.
For a facial attack, “the Court must consider the allegations of the complaint as true,” much
like a Rule 12(b)(6) motion to dismiss. Bd. of Trs. of Trucking Emps ofN. Jersey Welfare fund,

5

Inc. v. CaliberAuto Transfer, Inc.. No. 09-6447, 2010 WL 2521091, at *8 (D.N.J. June 11,2010)

(quoting Petrttska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006)). The burden is on the
Plaintiff to prove the Court has jurisdiction. Id. (citing Petruska, 462 F.3d at 302).
“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies.” Lance v. Coffman, 549 U.S. 437, 439 (2007). One key aspect of this case-orcontroversy requirement is standing. See Id. “The standing inquiry focuses on whether the party
invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Constitution
Party of Pa., 757 F.3d at 360. To establish standing, a plaintiff must satisfy a three-part test,

showing: “(1) an ‘injury in fact,’ i.e., an actual or imminently threatened injury that is ‘concrete
and particularized’ to the plaintiff; (2) causation, i.e., traceability of the injury to the actions of the
defendant; and (3) redressability of the injury by a favorable decision by the Court.” Nat’t
Collegiate AthleticAss’n v. Gov. ofN.i, 730 F.3d 208, 218 (3d Cir. 2013).
b.

Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure 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.” Bell At!. Corp. v. Twomblv, 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.” Connetty v. Lane Const. Corp., $09 F.3d 780, 786 (3d Cir. 2016) (internal

6

quotation marks and citations omitted). As a 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,
afier 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 v. Leading Edge Recovery Sols., 2010 WL
5146765, at *1 (D.N.J. Dec. 13, 2010).

Because Plaintiff is proceedingpro Se, the Court construes the pleadings liberally and holds
him to a less stringent standard than those filed by attorneys. Names 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, 2010 WL 3719623, at *1 (D.N.J. Sept. 10, 2010).
IV. ANALYSIS

Defendants first argue that the Amended Complaint should be dismissed with prejudice
because it fails to comply with the Court’s Dismissal Order. Defs. Br. at 5. Defendants contend
that the Dismissal Order was narrowly focused, pennitting Plaintiff to only remedy defects with
the RICO, FDCPA, and TILA claims. Id. Alternatively, Defendants claim that the Amended
Complaint should be dismissed for lack of subject-matter jurisdiction under Federal Rule 12(b)(1).
Id at 5-6. Finally, Defendants assert that the Amended Complaint should be dismissed for failing

to state a claim pursuant to Federal Rule 12(b)(6). Id. at 7-20.

7

a. Claims from Plaintiff’s Original Complaint

As an initial matter, in providing the Plaintiff the opportunity to amend his Complaint as
to the F CA, FDCPA, and TILA claims, the Court stipulated the elements Plaintiff would have to
identify. Original Opinion at 8-13. The Court first considers these claims.
1. FCA Claim

To establish an FCA violation, a plaintiff must allege that “(1) the defendant presented or
caused to be presented to an agent of the United States a claim for payment; (2) the claim was false
or fraudulent; and (3) the defendant knew the claim was false or fraudulent.” In re Plavix Mktg.
Sales Practice & Prod. Liab. Litig., 123 F. Supp. 3d 584, 600 (D.N.J. 2015). While a private party
may bring a suit pursuant to the FCA, he must allege that there was a false statement made to the
government. United States v. Eastwick Coil., 657 F. App’x 89, 93 (3d Cir. 2016). Indeed, the
Court noted that the objective of the F CA is to “protect the funds and property of the Government
from fraudulent claims.” Original Opinion at 9 (emphasis in original) (quoting Hutchins v.
Witentz, Goldman & Spitzer, 253 F.3d 176, 183 (3d Cir. 2001)).
The Court previously found that from the facts in the original Complaint, it did not appear
that the Government was involved in any capacity. Original Opinion at 10. In providing Plaintiff
an opportunity to re-plead this claim, the Court required him to identify the requisite government
involvement. Id. Reviewing the Amended Complaint, Plaintiff has not sufficiently done so.
Plaintiff does not directly address the FCA claim. Plaintiff only briefly mentions govenmient
agencies like the SEC or FDIC, and when he does, he discusses them in the context of prior cases
and actions. Am. Compi. at 11-12. For example, Plaintiff alleges that Defendant admitted to
unsavory practices before the SEC. Am. Compl. at 10-11. Regardless of whether this allegation
has merit, it is irrelevant to Plaintiffs FCA claim. The alleged practices did not include fraudulent

$

claims for payment presented to the Government. Nowhere in the Amended Complaint, or in
subsequent filings, does Plaintiff provide plausible facts suggesting that Defendant attempted to
defraud the government.

Therefore, because Plaintiff again failed to sufficiently plead any

government involvement, the Court dismisses the FCA claim with prejudice.
2. FDCPA Claim

To state a claim under the FDCPA, Plaintiff must establish that “(1) he or she is a
‘consumer’ who is harmed by violations of the FDCPA; (2) the ‘debt’ arises out of a transaction
entered into primarily for personal, family, or household purposes; (3) the defendant collecting the
debt is a ‘debt collector’; and (4) the defendant has violated, by act or omission, a provision of the
FDCPA.” Block v. Seneca Mortg. Servicing, 221 F. Supp. 3d 559, 583-84 (D.N.J. Oct 31, 2016)

(quoting Berk v. 1F.Morgan Chase Bank N.A., No. 11-2715, 2011 WL 4467746, at *3 (E.D. Pa.
Sept. 26, 2011) (citing 15 U.S.C.

§ 1692a-o)). The Court noted in its Original Opinion that, while

a “debt collector” is broadly defined under the statute, there is an exclusion for “any officer or
employee of a creditor while, in the name of the creditor, collecting debts for such creditor.”
Original Opinion at 10-1 1 (citing 15 U.S.C.

§ l692a(6)(A)). As such, a bank, acting as a creditor,

may “collect its own debts, in its own name, without subjecting itself to the provisions of FDCPA.”
Cooperv. Fressler &Fressler, LLF, 912 F. Supp. 2d 178, 184 (D.N.J. 2012). The Court concluded

that each bank owned Plaintiffs mortgage during the period they were collecting payments, and
thus were not included in the definition of “debt collector” under the FDCPA. Original Opinion
at 11. The FDCPA claim was dismissed with prejudice. Id.
However, the concluding language of the Original Opinion incorrectly stated the FDCPA
was dismissed without prejudice, suggesting Plaintiff could attempt to re-plead the claim. Original
Opinion at 13. Despite this, Defendants correctly point out in their brief that Plaintiff never

9

mentions the FDCPA claim in his Amended Complaint. Defs. Br. at 5. After this was pointed
out, Plaintiff mentioned the FDCPA claim in his second opposition brief Plaintiff argued that the
FDCPA claim was supported because “Defendants do not, and cannot in the future, ‘own’
Plaintiffs indebtedness.” P1.

Opp.

Br. at 7. However, as noted in the Court’s Original Opinion

dismissing this claim with prejudice, Plaintiff offers no proof of another lender owning his loan or
trying to collect payments. See Original Opinion at 11. Plaintiff does not address the issue that
Defendants do not qualify as “debt collectors” under the FDCPA criteria. Therefore, the Court
again dismisses the FDCPA claim with prejudice.
3. TILA Claim

TILA requires a creditor to maintain documents showing compliance with the regulations
promulgated pursuant to the statute for two years “after the date disclosures are required to be
made or action is required to be taken.” See 12 C.F.R. 226.25. In his Original Complaint, Plaintiff
merely cited to the statute without providing any factual allegations to support the citation. The
Court determined that Plaintiff had not plausibly identified that Defendants’ violated the
regulation, but afforded Plaintiff the opportunity to re-plead this claim. Original Opinion at 11.
The Amended Complaint does not mention the TILA claim.

Defendants argue that

Plaintiff failed to meet the requirements set forth by the Court to re-plead this claim. Defs. Br. at
5. Plaintiff subsequently mentions the TILA claim in his opposition, once again arguing that the

claim is supported because Defendants cannot own Plaintiffs indebtedness. P1. Opp. Br. at 7.
Additionally, Plaintiff contends, without elaboration, that all records relating to the TILA
allegation are false. Id. Because the first argument was already rejected, and the second argument
is conclusory, the Court again finds that Amended Complaint does not plausibly plead that
Defendants violated TILA. Accordingly, Plaintiffs TILA claim is dismissed with prejudice.

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b. Plaintiff’s Claims in His Amended Complaint (Counts One, Two, Three, Four)

The last claim that was dismissed without prejudice in the Court’s Original Opinion was
Plaintiffs civil RICO claim, referred to here as Count One. Plaintiff does attempt to re-plead
Count One. However, Plaintiff also attempts to bring three new counts in his Amended Complaint:
a violation of the New Jersey Consumer fraud Act (Count Two); a claim of common law fraud
(Count Three); and a claim of equitable estoppel (Count Four). As noted, Defendants argue that
the new claims exceed the scope of the Dismissal Order. Defs. Br. at 5. The Court acknowledges
that the language of the Dismissal Order restricts the Amended Complaint to re-pleading claims
dismissed without prejudice. However, in light of Plaintiffs prose status, the Court will consider
not only Plaintiffs re-plead civil RICO claim (Count One)but also the new claims (Counts Two,
Three, and F our).
1. Standing

Defendants first argue that “Plaintiff lacks constitutional standing to challenge Chase’s
ownership or authority over the Loan.” Defs. Br. at 6. Constitutional standing requires a plaintiff
to show an injury-in-fact, by alleging “the invasion of a concrete and particularized legally
protected interest resulting in harm that is actual or imminent, not conjectural or hypothetical.”
Finkelman v. NFL, $77 F.3 d 504, 510 (3d Cir. 2017) (quoting In re iVickelodeon Consumer Privacy

Litig., 827 f.3d 262, 272 (3d Cir. 2016)). It is well established that a borrower does not have
standing to sue for an alleged illegal assignment of his mortgage. Rajamin v. Deutsche Bank iVat ‘1
Trust Co., 757 F.3d 79, 86 (2d Cir. 2014) (finding that borrowers have no standing to allege a
defect in the assignment of their mortgages); Perez v. Jpmorgan Chase Bank, N.A., No. 14-2279,
2016 WL $16752, at *3 (D.N.J. Feb. 29, 2016) (“Courts in the Third Circuit have repeatedly held
mortgagors lack standing to contest the assignment of their mortgages[.]”). Courts have found that

11

there is no concrete injury to a borrower when their mortgage is assigned. See Batter, 61$ F. App’x
at 149 (finding that a borrower had not suffered a “concrete injury” when he did not allege that he
was required to pay his loan twice); Rajamin, 757 F.3d at 85 (holding that borrowers did not suffer
an injury when they did not allege they had paid more than they owed and were in no imminent
danger in having to pay duplicate loans).
In its Original Opinion, the Court determined that to the extent Plaintiff argues that the
assignment of his mortgage from WaMu to Chase was invalid or ‘without operation in law,’
Plaintiff did not have standing to make that claim. Original Opinion at 7. The Court noted that
Plaintiff never alleged that he paid Defendants more than the amount due, that he was in danger of
having to make duplicate loan payments, or that there had ever been an entity other than Chase
demanding payment on the loan after Chase acquired Plaintiffs Loan. Id. The Court concluded
that Plaintiff did not have standing to pursue any claims in which he was alleging a defect in the
assignment of his loan from WaMu to Chase. Id. at 8. However, the Court did not end its analysis
on standing because the Court was unsure whether Plaintiffs claims rested solely on the
assignment of his mortgage. Id.
After reviewing the Amended Complaint and subsequent filings by both parties, the Court
is now confident that Plaintiffs claims rest solely on the assignment of his mortgage. Defendants
claim that “the Plaintiff repeatedly and unambiguously asserts that Chase ‘has never been the
beneficiary on the Plaintiffs loan. Chase has failed to offer any proof of ownership.” Defs. Br.
at 5-6 (quoting Am. Compl. at 17). Indeed, the Court notes that twenty-one out of twenty-six
pages of the Amended Complaint either directly or indirectly reference the assignment of the
mortgage. Am. Compi. at 2-4, 6-10, 12, 14-25. Further, in Plaintiffs fifteen-page “Reply Motion
to Improper Enlargement of Time and Motion to Dismiss Amended Complaint” submission, he

12

references the assignment on ten pages. P1.

Opp.

Br. at 1-10. Finally, in Plaintiffs seven-page

“Opposition to Second Illegal Motion to Dismiss Oral Argument Necessary if Justice is to Prevail”
submission, he references the assignment on five pages. P1. Resp. at 2-6. While the amount of
references alone does not suffice to establish the assignment as the sole basis for Plaintiffs
remaining claims, the manner in which the assignment is referenced prove telling.
In his Amended Complaint, Plaintiff devotes a section to standing. Plaintiff first argues
that he “is legally and contractually bound by the ‘BORROWER COVENANTS’ clause on pg. 3
of his contract, to defend the title to his property from any/all invalid and itlegal assignments.”
Am. Compl. at 2 (emphasis added). Plaintiff continues by asserting he has suffered an injury in
fact when he was “injured by his reliance that WAMU, then Chase, would follow government
mandates and have actual ‘right to enforce’ his contract, and continued paying a ‘stranger’ to his
debt.” Am. Compl. at 3. Thus, in arguing he does have standing, Plaintiff bases his entire injuryin-fact argument on his contention that Chase does not have the right to collect the mortgage
because it resulted from an illegal assignment. Later in his Amended Complaint, Plaintiff again
makes clear that his injury-in-fact argument rests on his belief that the assignment was invalid.
Am. Compl. at 9. (asserting, among other things, that Plaintiff “does have standing to challenge
an assignment that renders his indebtedness ‘void.”). Plaintiff makes similar assertions several
times throughout the Amended Complaint. Am. Compl. at 14, 22, 24-25. However, as noted
above and in the Original Opinion, the law is clear Plaintiff does not have standing to allege a
defect in the assignment of his mortgage.
Additionally, Plaintiff makes clear that the assignment of his mortgage fonus the basis of
the four remaining counts brought in the Amended Complaint. First, when discussing Count One,
Plaintiff writes that he is “INCREDULOUS” at Defendants’ assertion that there was no pattern of

13

illegal activity. Am. Compi. at 16. Plaintiff immediately follows by claiming, “Chase ‘claims’
ownership of Plaintiffs indebtedness is/was based on fraudulent documents.” Am. Compi. at 16.
Plaintiff then declares that “WAMU failed to properly ‘assign’ mortgages, and now Chase is
illegally ‘fixing’ the errors.” Am. Compl. at 19. Thus, Plaintiff indicates that the requisite illegal
activity for the RICO claim stems from the assignment of his mortgage.
As to Count Two, Plaintiff lists the three elements necessary to bring a NJCFA claim,
including unlawful conduct by the Defendants. Am. Compl. at 4. Immediately afier providing the
elements, Plaintiff declares that “Chase has wrongfully claimed to own ‘certain assets’ (including
Plaintiffs indebtedness) that it’s predecessors in interest, FDIC and/or WAMU, did not own and
thus did not assign to Chase.” Am. Compl. at 4. This sentence is in bold font in the Amended
Complaint.
Concerning Count Three, Plaintiff begins by listing the five elements of common law
fraud. Am. Cornpl. at 21. Afier noting the first element, Plaintiff states, “Chase claims to own
Plaintiffs indebtedness, but refuses to produce any ‘clear and positive evidence’ to support that
claim.” Am. Compl. at 21. Additionally, under the fifih element, Plaintiff asserts, “Plaintiff
continues paying on a non-existent indebtedness.” Am. Compi. at 21. Thus, in alleging fraud,
Plaintiffs claims of a false statement and a resultant injury rest entirely on his belief that the
assignment of his mortgage was defective.
As to Count Four, Plaintiff again begins by listing the elements of equitable estoppel. Am.
Compl. at 6. But due to the lack of clarity, it is difficult to ascertain exactly what the driving
argument of his equitable estoppel claim is. Yet Plaintiff does assert, again in bold lettering, that
“[rn]ost importantly, [n]o matter how many times Chase ‘says’ they own Plaintiffs indebtedness,

14

they caimot support that claim with mandated ‘clear and positive evidence.” Am. Compi. at 9.
Thus, it is clear that Plaintiff again basis his argument around the assignment of the mortgage.9
Therefore, because Plaintiffs claims rest solely on the assignment of his mortgage, the
Court dismisses Plaintiffs remaining claims for lack of subject-matter jurisdiction pursuant to
Rule 12(b)(l).
2. Failure to State a Claim

Because Plaintiff is proceeding pro Se, the Court will also briefly address the merits of
each of Plaintiffs claims. In sum, the Court determines that in the alternative, even if Plaintiff
had standing, he fails to sufficiently plead any valid causes of action.
i. Count One (Civil RICO)

V

The RICO claim indicates that Defendants “have been actively engaged as an ‘enterprise,’
committing ‘predicate acts,’ and that Plaintiff is just one of their many ‘targets.” Am. Compi. at
20. Plaintiff elaborates on the “predicate acts” by alleging that Defendants have (1) committed
“mail fraud by sending ‘Statements’ demanding payment, monthly, on a non-existent debt,” (2)
“committed ‘wire fraud’ by falsely promising to ‘modify’ Plaintiffs loan at a rate he could afford,”
and (3) “committed ‘bank fraud’ by destroying and/or altering bank documents.” Id. Defendants
respond that the Amended Complaint fails to articulate a cause of action under RICO because
“there is no allegation of a pattern of illegal activity.” Defs. Br. at 13. Defendants assert that “at

Of note, in analyzing standing in the Original Opinion, the Court noted that “[i]mportantly,
Plaintiff does not allege that he ever paid Defendants more than the amount due, that he was in
danger of having to make duplicate loan payments, or that there had been an entity other than
Chase demanding payment on the loan afier Chase acquired Plaintiffs Loan.” Original Opinion
at 7. On page 15 of the Amended Complaint, Plaintiff writes: “[i]t matters not what amount
Defendants claim is due, whether he has ever been demanded to pay multiple parties, or that any
other entity demands payment. Those claims are not matters at bar. Chase NEVER purchased
nor assumed any residential mortgage loans.” Am. Compl. at 15. This allegation contradicts the
Original Opinion, and Plaintiff provides no authority to support his claim.
‘

15

its heart, the Amended Complaint relates to a single, contractual relationship between the Plaintiff
and the Defendants: the “Loan,” and, “by relying solely on past news reports concerning civil and
regzttatoiy actions to justifi a pattern of illegal activity, the Plaintiff failed to identify a continuing
threat of criminal activity. Id. at 14-15 (emphasis in original).
To bring a Civil RICO claim, a plaintiff must allege: “(1) the conducting of, (2) an
enterprise, (3) through a pattern, (4) of racketeering activity.” Gunter v. Ridgewood Energy Corp.,
32 F. Supp. 2d 166, 173 (D.N.J. 1998) (citing Sedima v. Imrex Co., 473 U.S. 479 (1985)). To
establish a “pattern of racketeering,” a plaintiff must allege “at least two predicate acts of
racketeering that occurred within ten years of each other.” Slimm v. Bank ofAm. Corp., No. 125846, 2013 WL 1867035, at *20 (D.N.J. May 2,2013). These acts must be “more than a series of
separate, isolated, or disconnected acts.” Irish v. Ferguson, 970 F. Supp. 2d 317, 346 (M.D.Pa.
2013). A “single, finite transaction carmot by itself underpin a pattern of racketeering activity.”
Kotar v. Preferred Real Estate Investments, Inc., 361 F. App’x 354, 365 (3d Cir. 2010).
In its Original Opinion, the Court dismissed the Civil RICO claim after finding Plaintiffs
allegations stem solely from his Loan with WaMu and then Chase, and that this allegation was
insufficient to constitute a pattern of racketeering. Original Opinion at 9. After reviewing the
Amended Complaint, the Court again finds that Plaintiffs allegations stem entirely from the Loan
and that this is insufficient to establish a pattern of racketeering. Plaintiff claims that “Defendants
have repeatedly been fined/penalized/sanctioned for the exact acts they are/were employing
against this Plaintiff.” Am. Compl. at 15. Plaintiff provides a statement from Bill Nettle, the
United States Attorney for the District of South Carolina, discussing a settlement with the nation’s
four largest mortgage servicers, including J.P Morgan Chase. Id. By providing a past settlement,
Plaintiff attempts to strengthen his claim that Chase committed similar acts here. However, as the

16

Court stated in its Original Opinion, Plaintiff cannot use prior court cases and government actions
to support his claim as it currently stands. See Original Opinion at 10. Additionally, Plaintiff goes
on to state that “Plaintiff is only concerned with the ‘predicate acts’ involving him.” Am. Compl.
at 15. Indeed, when Plaintiff alleges “mail fraud,” “wire fraud,” and “bank fraud,” he discusses
them in the context of his single loan transaction with Defendants. Plaintiff never moves beyond
“a single, finite transaction,” and does not meet the requirements for a Civil RICO claim.
Therefore, Count One is dismissed with prejudice.
ii. Count Two (NJCFA)

Plaintiff also brings a claim pursuant to the NJCFA. Specifically, Plaintiff claims that he
was “a victim of unconscionable processes employed by Chase that are unfair or fraudulent
business acts or practices.” Am. Compl. at 5. Plaintiff claims that Defendants assured him
repeatedly that he “would be granted a 2.46% interest rate for 480 months in a refinancing
agreement,” but that Defendants “at the 11th hour, 59th minute, coerced Plaintiff, under threat of
eviction, to agree to the further unconscionable terms of the ‘modified’ loan.” Id. Defendants
respond that “the modification of the Loan cannot represent an illegal act for the purposes of the
CFA,” and that Plaintiff failed to “specifically describe any misrepresentation or omission
allegedly made by any of the Defendants.” Defs. Br. at 11-12.
The NJCFA prohibits “any unconscionable commercial practice, deception, fraud, false
pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission
of any material fact with intent that others rely upon such concealment, suppression, or omission,
in connection with the sale or advertisement of any merchandise or real estate.” N.J.S.A. 56:8-1.
To bring a claim under the NJCFA, a plaintiff must allege: “(1) an unlawful practice; (2) an
ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendant’s

17

unlawftfl conduct and the plaintiffs ascertainable loss.” Dabttsh v. Mercedes-Benz USA, LLC,
378 N.J. Super. 105, 114 (App. Div. 2005). In regards to the unlawfl.il practice element, “courts
have derived three broad categories of unlawflul conduct: affirmative acts, knowing omissions, and
regulatory violations.” Mickens

ford Motor Co., 900 F. Supp. 2d 427, 436 (D.N.J. 2012).

In determining whether the act in question is conduct barred by the NJCFA, the New
Jersey Supreme Court recognized that “no hard and fast rules exist,” but “mere puffery does not
constitute consumer fraud.

..

[and] [m]inor disagreements between consumer and business owner

over quality of customer service, timing of service, or increased price is not consumer fraud.” Turf
Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392, 416 (1995). Rather, to rise to the

level of consumer fraud, “the business practice in question must be ‘misleading’ and stand outside
the norm of reasonable business practice in that it will victimize the average consumer.” Id.
Additionally, the term “ascertainable loss” means that a “plaintiff must suffer a definite,
certain, and measurable loss, rather than one that is merely theoretical.” Hevert

V.

Taddese, 431

N.J. Super. 388, 417 (App. Div. 2013). Indeed, “the certainty implicit in the concept of an
‘ascertainable’ loss is that it is quantifiable or measurable.” Thiedemann v. Mercedes-Benz USA,
LLC, 183 N.J. 234, 248 (2005). Finally, “[c]laims of common law fraud and consumer fraud under

New Jersey law are held to the higher pleading standard of Rule 9(b).” Schiano v. MBNA, No. 051771, 2014 WL 1430034, at *5 (D.N.J. Apr. 9, 2014). Federal Rule of Civil Procedure 9(b)
stipulates that “[i]n alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).

The Third Circuit has

interpreted this Rule to require plaintiffs “plead ‘the who, what, when, where, and how: the first
paragraph of any newspaper story.” In re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir.
1999).

18

Here, Plaintiff fails to meet the NJCF A’s heightened pleading requirement. first, Plaintiff
alleges that the “unlawful practice” in this case stems from Defendants’ representations
surrounding the modification of the loan agreement. However, the modification of an existing
loan is a reasonable business practice. While there appears to be disagreement over the fairness
of the terms of the modification, Plaintiff does not sufficiently plead that they were “outside the
norm of reasonable business practice.” Additionally, any non-economic losses Plaintiff allegedly
suffered are not recoverable under the NJCFA because they are not quantifiable or measurable.
Thiedemann, 183 N.J. at 248. Therefore, Plaintiff does not meet the heightened pleading standard

to bring a claim under the NJCFA, and Count Two is dismissed with prejudice.
iii. Count Three (Common Law Fraud)

To state a claim of common law fraud, “a plaintiff must show that defendant: (1) made a
representation or omission of a material fact; (2) with knowledge of its falsity; (3) intending that
the representation or omission be relied upon; (4) which resulted in reasonable reliance; and that
(5) plaintiff suffered damages.” DepoLink Court Reporting & Litig. Support Servs, e. Rochman,

430 N.J. Super. 325, 336 (App. Div. 2013). Further, a claim of common law fraud “must be proven
through clear and convincing evidence.” Stochastic Decisions, Inc. e. DiDornenico, 236 N.J.
Super. 388, 395 (App. Div. 1989). Additionally, Rule 9(b)’s more rigorous pleading requirement
applies because it is a claim of common law fraud. Schiano v. MBNA, No. 05-1771, 2014 WL
1430034, at *5 (D.N.J. Apr. 9, 2014).
In addressing the five elements, Plaintiff claims that (1) “Chase claims to own Plaintiffs
indebtedness”; (2) “Chase absolutely knows their claims are false”; (3) “Chase has perpetrated this
fraud on Plaintiff since the PAA, to conceal the truth from Plaintiff’; (4) “Plaintiff has relied on
Chase’s false statements”; and (5) “Plaintiff continued paying on a non-existent indebtedness.”

19

Am. Compl. at 21. Defendants respond that “there is no indication of any misrepresentation”
because the entire premise of the Amended Complaint is that “Chase is fraudulently demanding
repayment for the Loan,” but that “the undisputed evidence demonstrates that Plaintiff received
the Loan proceeds from WaMu to purchase the Property, and executed a Note and Mortgage to
WaMu

...

[and t]hereafier, the Loan was acquired by Chase.” Defs. Br. at 1$. Defendants further

respond that Plaintiff has not suffered any damages because “the statits qtto has remained in effect
since the Plaintiff entered into the Loan Modification Agreement” and because “Plaintiff has been
allowed to remain in possession of the Property.” Id.
The Court finds that Plaintiff does not plausibly plead an action for common law fraud.
For each element, Plaintiff mainly relies on his belief that the loan assignment was invalid, and
that Defendants were perpetuating a fraud upon him by seeking payment. However, the Court has
already determined that Plaintiff has no standing to allege an illegal assignment of his mortgage.
With that in mind, Plaintiff fails to satisfy the first element requiring that Defendants made a false
statement of a material fact by simply stating that “Chase claims to own Plaintiffs indebtedness.”
Defs. Br. at 1$. Without elaboration, Plaintiff does not sufficiently identify why this constitutes a
false statement of a material fact. Further, Plaintiff does not sufficiently detail an injury as a result
of a false statement. Because Plaintiff remained in possession of the property purchased with the
loan, the only “loss” he points to is his monthly payments on the loan. However, because Plaintiff
admits to entering the initial loan agreement, and because Plaintiff has not plead (1) that he ever
paid Defendants more than the amount due, (2) that he was in danger of having to make duplicate
loan payments, or (3) that there had been an entity other than Chase demanding payment on the
loan after Chase acquired Plaintiffs Loan, this

is not a

20

valid injury. Accordingly, Plaintiff fails to

plausibly plead the elements required for common law fraud, and Count Three is dismissed with
prejudice.
iv. Count Four (Equitable Estoppel)

A claim of estoppel requires a plaintiff to show: “(1) a misrepresentation by another party;
(2) which [he] reasonably relied upon; (3) to [his] detriment.” Leese v. Adeiphoi Viii., Inc., 516 F.

App’x 192, 194 (3d Cir. 2013). However, the doctrine of estoppel is generally disfavored and “is
applied only in very compelling circumstances.” Davin, L.L. C. v. Daham, 329 N.J. Super. 54, 67
(App. Div. 2000).
Plaintiff claims that “[a] question of fact remains for trial as to whether Chase made false
promises with fraudulent intent.” Am. Compl. at 6. Defendants respond that “[a]s held in the
Dismissal Order, the ‘Plaintiff does not allege that he ever paid Defendants more than the amount
due, that he was in danger of having to make duplicate loan payments, or that there had been an
entity other than Chase demanding payment on the loan after Chase acquired Plaintiffs Loan.”
Defs. Br. at 16 (citing Original Opinion, D.E. 41 at 7). Indeed, Defendants conclude that “the
Plaintiff cannot be fraudulently induced into making payments that he was contractually obligated
to pay to the only entity demanding payment because the Plaintiff voluntarily entered into the Loan
Modification Agreement.” Id.
The Court agrees and notes that Plaintiffs argument under this claim closely resembles
his arguments regarding common law fraud. In both instances, the claims rest on Plaintiffs belief
that Defendants misrepresented facts about the loan and Plaintiff was injured as a result. As such,
the Court need not duplicate the analysis here, but reiterates that Plaintiff does not plead that he
was required to pay more than the loan stipulated, has not been required to pay duplicate payments,
and has not been required to pay to more than one mortgagor. Further, Plaintiff does not plausibly

21

K
plead that he suffered any cognizable injuries. Accordingly, Count Four is not sufficiently alleged
and it is dismissed with prejudice.
V. CONCLUSION

When dismissing claims brought by a pro se plaintiff, a court must decide whether the
dismissal will be with prejudice or without prejudice, the latter allowing a plaintiff to correct any
deficiencies in their complaint. Grayson v. Mayview State Hosp., 293 f.3d 103, 110-111 (3d Cir.
2002). Typically, district courts will deny leave to amend only if: (a) the moving party’s delay in
seeking amendment is undue, motivated by bad faith, or prejudicial to the non-moving party or (b)
the amendment would be futile. Adams e. Goitid, Inc., 739 F.2d 858, $64 (3d Cir. 1984). Here,
the Court determines that further amendment of Plaintiffs Amended Complaint would be futile.
Plaintiffs claims all depend on an alleged illegal assignment of his mortgage. Plaintiff has no
standing to bring these claims and further amendment of his pleadings will not change this analysis.
Accordingly, the Court GRANTS Defendants’ motion to dismiss all counts with prejudice (D.E.
47). Additionally, Plaintiffs “Motion for Immediate Judicial Intervention” (D.E. 52), “Motion to
Strike.

.

.

and Request for Sanctions” (D.E. 61), and motion for summary judgment (D.E. 63) are

dismissed as moot. An appropriate Order accompanies this Opinion.

Date: April 18,2018

Qcf/v

John Michael Vazqzit.D.J.

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