MO v. JPMORGAN CHASE BANK, N.A. et al
OPINION. Signed by Judge Kevin McNulty on 4/26/2021. (ld, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SUNG H. MO,
JPMORGAN CHASE BANK, N.A.,
U.S.BANKCORP, TIAA BANK, and
WELLS FARGO BANK,
Civ. No. 20-14387 (KM) (ESK)
KEVIN MCNULTY, U.S.D.J.:
Sung Mo has a mortgage owned by JPMorgan Chase Bank, assigned to
U.S. Bank, serviced by TIAA Bank, and “invested in” by Wells Fargo Bank
(collectively, “Defendants”). After allegedly misleading Mo about his necessary
payments, Defendants brought a foreclosure action in New Jersey court. In this
Court, Mo sues Defendants, asserting contract and consumer-protection claims
arising from Defendants’ actions that led to his default. Defendants move to
dismiss, arguing that the Rooker-Feldman doctrine or preclusion doctrines bar
the case, but that in any event, Mo fails to state a claim, see Fed. R. Civ. P.
12(b)(6). (DE 23, 27.)1 For the following reasons, the motions to dismiss are
Certain citations to the record are abbreviated as follows:
DE = docket entry
Am. Compl. = Amended Complaint (DE 6)
Defs. Mot. = U.S. Bank, TIAA, and Wells Fargo’s Brief in Support of their Motion
to Dismiss (DE 24)
Opp. = Mo’s Opposition to the Motions to Dismiss (DE 31-1)
Mo bought real property with the aid of a mortgage from Bank of New
York Mortgage Company, LLC (“BNY”). (Am. Compl. ¶¶ 20–21.) TIAA services
the mortgage, and Wells Fargo “invest[ed]” in the mortgage. (Id. ¶¶ 5, 6.) BNY
assigned the mortgage to Chase and eventually to U.S. Bank. (Id. ¶¶ 3, 4.) Mo
executed a loan modification agreement with BNY. (Id. ¶ 23.) He noticed that
his payments according to the plan were not being processed. (Id. ¶¶ 24–25.)
When he reached out (to BNY, apparently, but the Amended Complaint is not
clear), BNY told him to send a different payment amount pursuant to a
different, temporary plan. (Id. ¶ 26.) He continued to make payments according
to that plan, but they were processed late. (Id. ¶¶ 27–32.) Eventually, he was
told that he had failed to correctly make payments on the temporary plan, and
he was placed in default. (Id. ¶ 47.)
In March 2017, U.S. Bank commenced a foreclosure proceeding against
Mo in New Jersey Superior Court. (Id.; see also DE 25-1.) Mo counterclaimed,
alleging that BNY inflated the value of the appraisal, affecting the terms of Mo’s
loan, in violation of the New Jersey Consumer Fraud Act (“NJCFA”), N.J. Stat.
Ann. § 56:8-2. (DE 25-4 at 5–6.) In February 2018, the court dismissed the
counterclaim with prejudice. (DE 25-2 at 2–3.) In May 2018, the court granted
summary judgment in favor of U.S. Bank and referred the case to the Office of
Foreclosure. (Id at 4.) Motion practice nevertheless continued, and U.S. Bank,
by its own account, cannot move for final judgment of foreclosure until motions
are resolved. (See Cert. in Resp. to Admin. Order, Adjustable Rate Mortg. Tr.
2005-10 v. Mo, No. F-005382-17 (N.J. Super. Ct. Ch. Div. Apr. 7, 2021).)
In October 2020, Mo filed this case. (DE 1.) In an Amended Complaint,
he asserts claims for (1) violation of the NJCFA; (2) breach of contract;
(3) violation of the Real Estate Settlement Procedures Act (“RESPA”), as
implemented by 12 C.F.R. § 1024.41; (4) violation of the Federal Trade
Commission Act (“FTCA”), 15 U.S.C. § 45(a)(1); and (5) breach of the covenant
of good faith and fair dealing. (Am. Compl. ¶¶ 54–90.) Wells Fargo, U.S. Bank,
and TIAA move to dismiss. (Defs.’ Mot.) Chase joins in their motion and moves
to dismiss on the additional ground that it is improperly named. (DE 28.)
STANDARD OF REVIEW
The Rooker-Feldman doctrine, explained further below, limits federal
jurisdiction. See Great W. Mining & Min. Co. v. Fox Rothschild LLP, 615 F.3d
159, 163 (3d Cir. 2010). A Rooker-Feldman motion to dismiss is therefore
properly asserted under Fed. R. Civ. P. 12(b)(1). See Gage v. Warren Twp.
Comm. & Planning Bd. Members, 463 F. App’x 68, 71 (3d Cir. 2012) (per
The burden of establishing federal jurisdiction rests with the party
asserting its existence. [citing DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 342 n.3 (2006).] “Challenges to subject matter
jurisdiction under Rule 12(b)(1) may be facial or factual.” [citing
Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.
2009) (quoting Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181,
188 (3d Cir. 2006)).] A facial attack “concerns ‘an alleged pleading
deficiency’ whereas a factual attack concerns ‘the actual failure of
[a plaintiff's] claims to comport [factually] with the jurisdictional
prerequisites.’ ” [citing CNA v. United States, 535 F.3d 132, 139 (3d
Cir. 2008) (alterations in original) (quoting United States ex rel.
Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)).]
“In reviewing a facial attack, the court must only consider the
allegations of the complaint and documents referenced therein and
attached thereto, in the light most favorable to the plaintiff.” [citing
Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).] By contrast, in reviewing a factual attack, “the court must
permit the plaintiff to respond with rebuttal evidence in support of
jurisdiction, and the court then decides the jurisdictional issue by
weighing the evidence. If there is a dispute of a material fact, the
court must conduct a plenary hearing on the contested issues
prior to determining jurisdiction.” [citing McCann v. Newman
Although Defendants bring their motions under Rule 12(b)(6), I will disregard
that minor defect, as I “consider motions based on their substance rather than their
title.” Garrett v. Wexford Health, 938 F.3d 69, 81 n.17 (3d Cir. 2019).
Irrevocable Tr., 458 F.3d 281, 290 (3d Cir. 2006) (citations
Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (footnotes
omitted; case citations in footnotes inserted in text).
On a Rule 12(b)(1) jurisdictional dismissal motion based on RookerFeldman, I may consider documents filed in a state foreclosure action. Martinez
v. Bank of Am., N.A., 664 F. App’x 250, 253 n.4 (3d Cir. 2016) (per curiam);
Aliperio v. Bank of Am., N.A., Civ. No. 16-1008, 2016 WL 7229114, at *6 (D.N.J.
Dec. 13, 2016), aff’d, 764 F. App’x 236 (3d Cir. 2019) (per curiam). Indeed,
such documents may be considered for their existence, though not for the
truth of the matters asserted therein, even on a facial, Rule 12(b)(6) standard.
See S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d
410, 426-27 (3d Cir. 1999).
B. Failure to State a Claim
Federal Rule of Civil Procedure 8(a) does not require that a pleading
contain detailed factual allegations but “more than labels and conclusions.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must raise
a claimant’s right to relief above a speculative level, so that a claim is “plausible
on its face.” Id. at 570. That standard is met when “factual content  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). Rule 12(b)(6)
provides for the dismissal of a complaint if it fails to state a claim. The
defendant bears the burden to show that no claim has been stated. Davis v.
Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016). I accept facts in the complaint
as true and draw reasonable inferences in the plaintiff’s favor. Morrow v.
Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc). Nonetheless, on a Rule
12(b)(6) motion based on preclusion, I may consider documents filed in a state
foreclosure action. Martinez, 664 F. App’x at 254 n.7; Aliperio, 2016 WL
7229114, at *6.
Defendants argue for dismissal because (A) Rooker-Feldman applies (I
disagree), (B) preclusion applies (I disagree), and (C) the Amended Complaint
fails to state a claim (I agree).
Under the Rooker-Feldman doctrine,3 this Court does not sit to hear
appeals from state-court judgments. Malhan v. Sec’y U.S. Dep’t of State, 938
F.3d 453, 458 (3d Cir. 2019). The doctrine applies to bar “ cases brought by
state-court losers  complaining of injuries caused by state-court judgments
 rendered before the district court proceedings commenced and  inviting
district court review and rejection of those judgments.” Id. (citation omitted).
As the elements suggest, Rooker-Feldman applies only when there was a
prior state-court judgment. Id. What qualifies? There are “three situations”:
(1) “when the highest state court in which review is available has affirmed the
judgment below,” (2) “when the state action has reached a point where neither
party seeks further action,” and (3) when the “state proceeding has finally
resolved all the federal questions in the litigation, even though state law or
purely factual questions . . . remain.” Id. at 459–60 (cleaned up). The
foreclosure proceeding here does not fall into any of these scenarios.
On the first, the proceeding has not even reached an appellate court, let
alone the New Jersey Supreme Court.
The second scenario applies (a) “when a lower state court issues a
judgment and the losing party allows the time for appeal to expire” or (b) “when
a state court issues an interlocutory order and “the parties then voluntarily
terminate the litigation.” Id. at 459 (quotation marks and citation omitted)
(emphasis added). As to (a), the state court has not yet issued an appealable
final judgment. In a New Jersey foreclosure action, neither an order dismissing
The nomenclature has taken on a life of its own, but the original reference is to
the seminal cases of Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
counterclaims with prejudice nor an order granting summary judgment and
referring the case Office of Foreclosure is final and appealable. Aliperio, 2016
WL 7229114, at *7–10; see Martinez, 664 F. App’x at 253 n.4. Rather, the final
judgment of foreclosure is the final decision. Aliperio, 2016 WL 7229114, at *8.
As to (b), although there is an interlocutory dismissal of the counterclaim, the
parties have not ended the foreclosure litigation. Plainly then, the second
scenario does not apply.
The third scenario might, in another case, present a closer question—but
not here. In theory, when a state court dismisses federal-law counterclaims
with prejudice, one could say that the court “finally resolved all the federal
questions in the litigation.” Id. at 459 (citation omitted). But that is not this
case. In the foreclosure proceeding, one of Mo’s outstanding motions moves to
dismiss the foreclosure complaint on the grounds that U.S. Bank violated
RESPA. (Mem. of Law in Supp. of Mot. to Dismiss at 5–6, Adjustable Rate
Mortg. Tr. 2005-10 v. Mo, No. F-005382-17 (N.J. Super. Ct. Ch. Div. Jan. 31,
2021).) Thus, not all federal questions have been resolved, so the third scenario
does not apply.
Accordingly, there has been no state-court judgment for Rooker-Feldman
purposes, so that doctrine does not deprive me of jurisdiction.
Preclusion doctrines prevent parties from relitigating issues or claims in
subsequent suits. Taylor v. Sturgell, 553 U.S. 880, 892 (2008). “New Jersey law
determines the preclusive effect of a judgment issued by a New Jersey court.”
Martinez, 664 F. App’x at 253 n.5 (citing Paramount Aviation Corp. v. Gruppo
Agusta, 178 F.3d 132, 135 (3d Cir. 1999)). Defendants specifically invoke issue
preclusion (Defs. Mot. at 7), which “prohibits a party from relitigating matters
or facts which the party actually litigated and which were determined in a prior
action.” Matter of Adoption of Amendments to N.J.A.C. 11:22-11, 207 A.3d 772,
776 (N.J. Super. Ct. App. Div.), certif. denied, 239 N.J. 406 (N.J. 2019). But, as
in the case of Rooker-Feldman, issue preclusion requires that “the court in the
prior proceeding issued a final judgment.” Id. (citation omitted). There was no
such final judgment here. Aliperio, 2016 WL 7229114, at *11–12. Nor would
any other preclusion doctrines help Defendants, because they, too, require a
final judgment. Id. Accordingly, this suit is not precluded.
C. Failure to State a Claim
New Jersey Consumer Fraud Act
The NJCFA is a consumer-protection statute prohibiting enumerated
unlawful practices “in connection with the sale or advertisement of any
merchandise or real estate.” D’Agostino v. Maldonado, 78 A.3d 527, 537 (N.J.
2013). “To state a claim under the NJCFA, a plaintiff must allege that the
defendant engaged in an unlawful practice that caused an ascertainable loss to
the plaintiff.” Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007)
(citation omitted). A plaintiff must plead that he or she “has suffered a definite,
certain and measurable loss, rather than one that is merely theoretical.” Payan
v. GreenPoint Mortg. Funding, Inc., 681 F. Supp. 2d 564, 572 (D.N.J. 2010)
Mo “make[s] no attempt to explain what [his] ascertainable loss is,” so his
NJCFA claim fails. Matrix Distribs. v. Nat’l Ass’n of Bds. of Pharm., Civ. No. 1817462, 2020 WL 7090688, at *18 (D.N.J. Dec. 4, 2020). In fact, it is unclear
what he seeks to recover, and the seeming theory of his case (Defendants’
misrepresentations caused him to default) stands far afield of the typical
NJCFA case claiming that a consumer received a product of lesser value than
was promised. Id. If that were not enough, he does even identify which
Defendant allegedly misled him.4
I note here that Mo’s opposition brief is essentially copied from his motion to
dismiss filed in the foreclosure action. Compare Opp., with Mem. of Law in Supp. of
Mot. to Dismiss, Adjustable Rate Mortg. Tr. 2005-10 v. Mo, No. F-005382-17 (N.J.
Super. Ct. Ch. Div. Jan. 31, 2021). As such, it fails to respond to many of Defendants’
arguments and introduces facts outside the pleadings. Thus, many counterarguments
or defenses for his claims are forfeited. Moreover, the Third Circuit recently
admonished a lawyer for repackaging a motion filed in the district court as his
appellate brief. Conboy v. U.S. Small. Bus. Admin., --- F.3d ---, ---, No. 20-1726, 2021
For these reasons, Count 1 will be dismissed.
Breach of Contract
Mo alleges that “Defendants breached the loan modification agreement.”
(Am. Compl. ¶ 63.) A New Jersey breach of contract claims requires “(1) the
existence of a valid contract between the parties; (2) failure of the defendant to
perform its obligations under the contract; and (3) a causal relationship
between the breach and the plaintiff's alleged damages.” Mid-Atl. Salt, LLC v.
Morris Cnty. Coop. Pricing Council, 964 F.3d 218, 226 (3d Cir. 2020) (citation
omitted). “A plaintiff must identify the specific contract or provision that was
allegedly breached.” Barker v. Our Lady of Mt. Carmel Sch., Civ. No. 12-4308,
2016 WL 4571388, at *15 (D.N.J. Sept. 1, 2016).
Mo has not pointed to any part of the loan modification agreement as the
source of his breach. While he belatedly attaches it to his opposition (Opp., Ex.
A), it is not the Court’s responsibility to scour the fine print and suggest
theories for how it could have been breached. Pleading standards, even as to
pro se plaintiffs, require more. Moreover, Mo impermissibly alleges his claim
against all Defendants without alleging how they all can be liable. See
Integrated Micro-Chip Elecs. Mex. v. Lantek Corp., Civ. No. 18-14112, 2019 WL
4668036, at *2 (D.N.J. Sept. 24, 2019) (Rule 8 requires more than “group
pleading” for a breach of contract claim (citation omitted)). It is not too much to
ask even a pro se plaintiff, particularly after substantial litigation of similar
matters in state court, to point to the obligations that he says were breached.
For these reasons, Count 2 will be dismissed.
RESPA is “a consumer protection statute that regulates the real estate
settlement process.” Jones v. ABN Amro Mortg. Grp., Inc., 606 F.3d 119, 124 (3d
WL 1081089, at *2–3 (3d Cir. Mar. 19, 2021). Of course, Mo proceeds pro se, so an
attorney’s duties to the court are not at play. But even pro se parties have duties to
the court, and “copy-and-paste jobs” may violate those duties. See id. at *3.
Nonetheless, as Defendants’ arguments for dismissal are persuasive, there is no need
to dismiss on such procedural grounds.
Cir. 2010). Mo specifically alleges a violation of 12 C.F.R. § 1024.41(b)–(d), a
regulation implementing RESPA that requires services to promptly review “loss
mitigation applications,” and to provide notice and an explanation of denials
before a foreclosure. Mo alleges that “submitted over six (6) complete loss
mitigation applications and all of them were denied without specific reason or
reasons.” (Am. Compl. ¶ 73.)
But a plaintiff must plead that a RESPA violation caused actual
damages. Giordano v. MGC Mortg., Inc., 160 F. Supp. 3d 778, 781 (D.N.J.
2016). All Mo pleads is a bare violation (if that). As to any specific injury caused
to him, he simply pleads that he “has been damaged.” (Am. Compl. ¶ 74.) He
has not “specifically identified the problem” created by the violation or
“specifically identified the harm” created thereby. Giordano, 160 F. Supp. 3d at
783. Accordingly, a RESPA claim is not plausibly alleged.
For these reasons, Count 3 will be dismissed.
Mo alleges an FTCA claim, but there is no private right of action to
enforce the FTCA. E.g., Kim v. Genesis Co., Civ. No. 15-8556, 2017 WL
4861669, at *4 (D.N.J. Oct. 26, 2017). For that reason, Count 4 will be
Breach of the Covenant of Good Faith and Fair Dealing
“Every contract contains an implied covenant of good faith and fair
dealing.” Wade v. Kessler Inst., 798 A.2d 1251, 1259 (N.J. 2002). “A party to a
contract breaches the covenant if it acts in bad faith or engages in some other
form of inequitable conduct in the performance of a contractual obligation.”
Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 288 (3d Cir.
2000). Mo alleges in a conclusory fashion that “Defendants acted with bad
motives or intentions to cause Plaintiff into a default.” (Am. Compl. ¶ 86.) But
bare allegations that defendant acted in bad faith allegations are insufficient,
even for pro se plaintiffs. Mehnert v. U.S. Bank Nat’l Ass’n, Civ. No. 17-4985,
2018 WL 1942523, at *8 (D.N.J. Apr. 23, 2018). That any of the defendants
acted to cause Mo to default is an “unwarranted inference” which I need not
accept. Id. (citation omitted).
For those reasons, Count 5 will be dismissed.
For the reasons set forth above, the motions to dismiss are granted.
Because this is an initial dismissal based on inadequacy of pleading, it is
entered without prejudice to the filing, within 60 days, of a proposed amended
complaint that remedies the deficiencies described above. A separate order will
Dated: April 26, 2021
/s/ Kevin McNulty
Hon. Kevin McNulty
United States District Judge
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