GEYER et al v. AMERICAN ADVISORS GROUP et al
Filing
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OPINION. Signed by Judge Susan D. Wigenton on 1/18/18. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ARLYNE GEYER,
Civil Action No: 17-7336 (SDW) (LDW)
Plaintiff,
v.
OPINION
AMERICAN ADVISORS GROUP, et al.,
Defendants.
January 18, 2018
WIGENTON, District Judge.
Before this Court is Defendant American Advisors Group’s (“AAG” or “Defendant”)
Motion to Dismiss Plaintiff Arlyne Geyer’s (“Plaintiff”) Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Jurisdiction is proper pursuant to 28 U.S.C. § 1332(a). Venue is proper
pursuant to 28 U.S.C. § 1391. This opinion is issued without oral argument pursuant to Federal
Rule of Civil Procedure 78. For the reasons stated herein, the Motion to Dismiss is GRANTED.
I.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a New Jersey resident who applied for a reverse mortgage with AAG in April
2016. (2d Am. Compl. ¶¶ 1, 4, ECF No. 6.) Plaintiff avers that in or about May 2017, she was
negotiating with a lienholder’s attorney to discharge a lien on her property “at a substantially
discounted basis.” (2d Am. Compl. ¶¶ 6-7.) The gravamen of Plaintiff’s Complaint is that after
Defendant Suzanne Kern, who works for AAG, disclosed to the lienholder’s attorney that Plaintiff
had applied for a reverse mortgage, the lienholder refused to continue negotiating with Plaintiff on
the terms previously discussed. (2d Am. Compl. ¶¶ 7-9.)
On August 22, 2017, Plaintiff filed suit against Defendants in the Superior Court of New
Jersey, Morris County. (Notice of Removal Ex. A, ECF No. 1.) AAG removed the action to the
United States District Court of New Jersey on September 21, 2017. (ECF No. 1.) Plaintiff’s
Second Amended Complaint, filed in this Court on October 17, 2017, asserts three causes of action
against Defendants: tortious interference (Count I); unfair trade practices and violation of
disclosure laws (Count II); and negligence (Count III). (ECF No. 6.) On October 31, 2017, AAG
filed the instant Motion to Dismiss. (ECF No. 8.) Plaintiff timely filed her opposition on
November 29, 2017, and AAG replied on December 11, 2017. (ECF Nos. 11, 13.)
II.
LEGAL STANDARD
An adequate complaint must be “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This Rule “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’ rather than
a blanket assertion, of an entitlement to relief”).
In considering a Motion to Dismiss under Rule 12(b)(6), the Court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Phillips, 515 F.3d at 231 (external citation omitted). However, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
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Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fowler v. UPMC Shadyside,
578 F.3d 203 (3d Cir. 2009) (discussing the Iqbal standard). Determining whether the allegations
in a complaint are “plausible” is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct,” the complaint
should be dismissed for failing to “show[] that the pleader is entitled to relief” as required by Rule
8(a)(2). Id.
III.
DISCUSSION
a. Count One – Tortious Interference
To establish a claim for tortious interference, Plaintiff must prove: (1) a reasonable
expectation of economic advantage; (2) interference done intentionally and with malice; (3) a
causal connection between the interference and the loss of prospective gain; and (4) actual
damages. See Printing Mart–Morristown v. Sharp Elecs. Corp., 563 A.2d 31, 37 (N.J. 1989); see
also Interlink Prods. Int’l, Inc. v. HDS Trading Corp., Inc., No. 15-1642, 2015 WL 12840378, at
*5 (D.N.J. Oct. 14, 2015). As pled, Plaintiff has not set forth what contracts Defendants interfered
with, such that she would have a reasonable expectation of economic advantage. Furthermore, the
pleadings do not suggest that Defendants acted maliciously or willfully in contacting the
lienholder’s attorney. See Printing Mart–Morristown, 563 A.2d at 37 (“[M]alice is defined to
mean that the harm was inflicted intentionally and without justification or excuse.”). As Plaintiff
has failed to assert any of the four required allegations in order to state a tortious interference
claim, Count One will be dismissed.
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b. Count Two – Unfair Trade Practices and Violation of Disclosure Laws
Other than alleging that Defendants violated state and federal laws that pertain to unfair
and deceptive trade practices, Plaintiff has not specified which statutes were purportedly violated.
Rather, for the first time in her opposition brief, Plaintiff contends that Defendants violated the
Gramm-Leach-Bliley Act (the “Act”), which prohibits financial institutions from “disclos[ing] to
a nonaffiliated third party any nonpublic personal information, unless such financial institution
provides or has provided [notice] to the consumer[.]” 15 U.S.C. § 6802. Even if such a violation
were specifically pled, it is not a claim upon which relief can be granted because the Act does not
create a private cause of action. See 15 U.S.C. § 6805 (vesting enforcement of the regulations with
the Bureau of Consumer Financial Protection, the federal functional regulators, state insurance
authorities, and the Federal Trade Commission); see also Arce v. Bank of Am., No. 13-2776, 2013
WL 6054817, at *7 (D.N.J. Nov. 15, 2013) (dismissing a claim under the Act because “it is clear
from the language of the statute that Plaintiff cannot bring a private right of action”). Therefore,
Count Two will be dismissed.
c. Count Three – Negligence
Before addressing Plaintiff’s negligence claim, the Court must first address whether it can
consider certain exhibits attached to Defendant’s Motion to Dismiss. The general rule is that a
district court may not consider material extraneous to the pleadings when ruling on a motion to
dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). However,
a court may consider a “document integral to or explicitly relied upon in the complaint . . . without
converting the motion [to dismiss] into one for summary judgment.” Id. “The rationale underlying
this exception is that the primary problem raised by looking to documents outside the complaint—
lack of notice to the plaintiff—is dissipated ‘[w]here the plaintiff has actual notice . . . and has
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relied upon these documents in framing the complaint.” Id. (quoting Watterson v. Page, 987 F.2d
1, 3-4 (1st Cir. 1993)). Allowable documents include the Complaint, exhibits attached to the
Complaint, matters of public record, as well as undisputedly authentic documents if a plaintiff’s
claims are based upon these documents. Guidotti v. Legal Helpers Debt Resolution, 716 F.3d 764,
772 (3d Cir. 2013).
In her Complaint, Plaintiff alleges that Defendants owed her a duty of care and
confidentiality in handling her reverse loan application. (See generally 2d Am. Compl.) Because
the loan documents are integral to the Complaint, and because Plaintiff does not dispute their
authenticity, this Court may and will consider the “Residential Loan Application for Reverse
Mortgages,” “Privacy Policy Disclosure,” and “General Authorization” attached to Defendant’s
Motion to Dismiss. See Pension Benefit 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 plaintiff’s claims are based on the document.”).
In New Jersey, a negligence claim requires a plaintiff to establish four elements: “(1) a
duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.” See
Jersey Cent. Power & Light Co. v. Melcar Util. Co., 59 A.3d 561, 571 (N.J. 2013). In this case,
although Plaintiff alleges that Defendants violated a duty of care and confidentiality by contacting
her lienholder and disclosing that she had applied for a reverse mortgage, Plaintiff signed
documents that authorized Defendants to speak with Plaintiff’s other creditors. For example,
Plaintiff’s “Residential Loan Application for Reverse Mortgages” includes the following
acknowledgment:
Each of the undersigned hereby acknowledges that any owner of the
Loan, its servicers, successors, and assigns, may verify or reverify
any information contained in this application or obtain any
information or data relating to the Loan, for any legitimate business
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purpose through any source, including a source named in this
application or a consumer reporting agency.
(See Berg Decl. Ex. 9, ¶ VII, ECF No. 8-11.) Similarly, the Privacy Policy Disclosure advised
Plaintiff:
As part of providing you with financial products or services, we may
obtain information about you from the following sources . . . Your
transaction with our affiliates, others, or us. This information may
include your account balances, payment history, and account usage
....
(See Berg Decl. Ex. 14 at 1, ECF No. 8-16.) Moreover, Plaintiff signed a General Authorization
that allowed AAG to “release any information requested by the Lender and/or assigns to complete
the processing of the loan[,]” including information about open credit accounts, payment records,
and balances. (See Berg Decl. Ex. 15, ECF No. 8-17.) Because Plaintiff permitted Defendants to
contact its creditors to process her loan application, Defendants did not breach a duty of care or
confidentiality by contacting her property’s lienholder. As such, Plaintiff has failed to state a claim
for negligence, and Count Three will be dismissed.
IV.
CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss is GRANTED.1 An
appropriate Order follows.
/s/ Susan D. Wigenton
SUSAN D. WIGENTON, U.S.D.J
Orig:
cc:
Clerk
Leda Dunn Wettre, U.S.M.J.
Parties
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In the alternative to its substantive arguments, Defendant contends that the Complaint should be dismissed because
it was amended without leave of court or Defendant’s written consent. This Court would not have dismissed the
Second Amended Complaint on those grounds because the amended pleadings simply removed a plaintiff and added
a negligence claim. See Fed. R. Civ. P. 15(a) (“The court should freely give leave when justice so requires.”); see
also Foman v. Davis, 371 U.S. 178 (1962). However, such considerations are now moot because the Second Amended
Complaint will be dismissed on other grounds.
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