ROMAN v. BANK OF AMERICA et al

Filing 5

MEMORANDUM AND/OR OPINION RE: IN FORMA PAUPERIS. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 3/12/2012; 3/13/2012 ENTERED AND COPIES MAILED TO PRO SE.(tomg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FILED

CIVIL ACTION

J1!.SON E. ROMAN

MAR 1 2 2012

v.
NO. 11-6603

BANK OF AMERICA, et a1.

~I()HAEL E. KUNZ, Clerk

cY

Dep. Clerk

MEMORANDUM

MARCH

SANCHEZ, J.

, 2012

Jason Roman brought this action against Countrywide Home
Loans ("Countrywide") and Bank of America, seeking to proceed in
forma pauperis.

The Court will grant Roman leave to proceed

forma pauueris, but,

for the following reasons, will dismiss his

complaint without prejudice to his filing an amended complaint.
I.

FACTS
According to the complaint, Roman's home mortgage was sold

to countrywide.

Roman alleges that Countrywide promised that his

monthly mortgage payment would be reduced from $1,800.00 to
$600.00 if he took a second mortgage.

Roman entered into a

second mortgage, but countrywide never reduced his payments.

He

also alleges that Countrywide required him to pay for homeowner's
insurance, even though he already had homeowner's insurance·.
When Roman notified countrywide of the issue, Countrywide
allegedly promised to repay him $4,000.00, but never did.
At some point, Bank of America purchased Countrywide.

Bank

of America also falsely promised to reduce Roman's monthly
mortgage payments and continued Countrywide's practice of
charging him for homeowner's insurance even though he already had

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insurance.

Roman contends that he has "[run] out of money" and

that Bank of America is now "attempting to impose a foreclosure
(Compl. ~~ 5-6.)

proceeding upon (him]."

Roman seeks "an

injunctive order immediately preventing .

Bank of America

from entering foreclosure proceedings against [him],"

~ 9),

as well as over $50 million in damages.
II.

STANDARD OF REVIEW

As Roman is proceeding in forma pauperis, 28 U.S.C. §
1915(e) (2) (B) applies.

That provision requires the Court to

dismiss the complaint if it

frivolous or malicious, fails to

state a claim, or seeks monetary relief from a defendant who is
immune.

A complaint is frivolous if it "lacks an arguable basis

either in law or in fact."
325 (1989).

Neitzke v. Williams, 490 U.S. 319,

Whether a complaint fails to state a claim under

§

1915(e) is governed by the same standard applicable to motions to
dismiss under Federal Rule of Civil Procedure 12(b) (6), see
Tourscher v. MCCullough, 184 F.3d 236, 240 (3d Cir. 1999), which
requires this Court to determine whether the complaint contains
"sufficient factual matter, accepted as true,
relief that is plausible on its face."
U.S. 662, 129 S. Ct. 1937, 1949 (2009)
Furthermore,

to state a claim to

Ashcroft v. Iqbal, 556
(quotations omitted).

"[i]f the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action."
Fed. R. civ. P. 12(h) (3).
III. ANALYSIS

It is apparent from the complaint that Roman is attempting
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to base his claims in part on 42 U.S.C.

§

1983.

However, as the

defendants are not state actors, there is no legal basis for any
§

1983 claims against them.

F.3d 628,638 (3d Cir. 1995)

Groman v. Twp. of Manalapan, 47
("[Al suit under § 1983 requires the

wrongdoers to have violated federal rights of the plaintiff, and
that they did so while acting under color of state law.").
Furthermore, plaintiff has not stated a claim under 42 U.S.C. §
1982 or § 1985 because there is no suggestion that defendants
were motivated by race or class-based discriminatory animus.
Brown v. Philip Morris Inc., 250 F.3d 789, 797

(3d Cir. 2001);

Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).

Additionally,

although many federal laws apply to lenders, the complaint fails
to state a claim under any of those statutes.

Koons Buick

Pontiac GMC, InC. v. Nigh, 543 U.S. 50, 53-54 (2004)

(Truth in

Lending Act was enacted "to assure a meaningful disclosure of
credit terms" and "requires a creditor to disclose information
relating to such things as finance charges, annual percentage
rates of interest, and borrowers' rights")

(quotations omitted);

In re Cmty. Bank of N. Va., 622 F.3d 275, 282 (3d Cir. 2010)
(Home Ownership and Equity Protection Act is an amendment to TILA
and imposes "special disclosure requirements" on certain types of
loans); Sarsfield v. Citimortgage, Inc., 667 F. Supp. 2d 461,
465-67 (M.D. Pa. 2009)

(discussing Real Estate Settlement

Procedures Act and cOncluding that provision governing escrow
accounts established by lenders, 12 U.S.C. § 2609, does not
create a private cause of action) .
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However, the facts alleged in the complaint appear to
support claims under state law for fraudulent misrepresentation
and violation of pennsylvania's Unfair Trade Practices and
Consumer Protection Law.

But it is unclear whether diversity

jurisdiction exists over those claims because the complaint does
not indicate the citizenship of the defendants.
1332(c) (1)

See 28 U.S.C. §

("[Al corporation shall be deemed to be a citizen of

every State and foreign state by which it has been incorporated
and of the State or foreign state where it has its principal
place of business.").

Furthermore, even if Roman could state

claims within the Court's diversity jurisdiction, the Anti­
Injunction Act, 28 U.S.C.

§

2283, prohibits the Court from

enjoining any foreclosure proceedings that Bank of America has
already filed against Roman in state court.

See Ungar v.

Mandell, 471 F.2d 1163, 1165 (2d Cir. 1972).
IV.

CONCLUSION

For the foregoing reasons, the Court will dismiss the
complaint without prejudice.

Roman is given leave to file an

amended complaint in the event he can cure any of the above-noted
deficiencies.

An appropriate order follows.

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