MAZZA et al v. THE BANK OF NEW YORK MELLON CORPORATION et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 2/16/21. 2/16/21 ENTERED AND COPIES NOT MAILED TO PRO SES AND E-MAILED.(rf, )
Case 2:20-cv-03253-ER Document 31 Filed 02/16/21 Page 1 of 24
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Mazza, et al.,
The Bank of New York Mellon,
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
February 16, 2021
Plaintiffs are three pro se individuals: Mark Mazza, his
wife Lisa Mazza, and their daughter Sophia Mazza. Plaintiffs
assert seventeen causes of action against a number of
defendants, including ten “John Doe” defendants, who were
allegedly involved at some point in the servicing of a mortgage
and related foreclosure upon Plaintiffs’ property.
Defendant Bank of America, N.A. (“BANA”) filed a motion to
dismiss for failure to state a claim on behalf of itself and as
successor by de jure merger with BAC Home Loans Servicing, L.P.
The remaining named Defendants (MERSCORP, Inc. (“MERS”),
Specialized Loan Servicing LLP (“SLS”), and The Bank of New York
Mellon (“BNYM”)) have joined in BANA’s motion to dismiss.
Case 2:20-cv-03253-ER Document 31 Filed 02/16/21 Page 2 of 24
Defendants also argue that Plaintiff Sophia Mazza should be
dismissed from the case. For the reasons explained below,
Defendants’ motion to dismiss will be granted and Plaintiff
Sophia Mazza will also be dismissed from the case.
FACTUAL BACKGROUND/PROCEDURAL HISTORY
A. Procedural History
On January 23, 2015, following a bench trial, the Chester
County Court of Common Pleas (“the Trial Court”) entered a
verdict granting an in rem judgment in the underlying
foreclosure action in favor of BNYM (the “Foreclosure Action”).
The Foreclosure Action is based upon a Mortgage executed by
Plaintiffs Lisa and Mark Mazza on June 6, 2006 in favor of MERS,
acting solely as nominee for America’s Wholesale Lender.1 The
Mortgage was secured by real property located at 1271 Farm Road,
Berwyn, Pennsylvania 19312 (“Property”). The Mortgage was
recorded in the Chester County Recorder of Deeds Office on June
14, 2006. Thereafter, the Mortgage was assigned to BNYM as
trustee for the Certificateholders of the CWALT, Inc.,
Alternative Loan Trust 2006-OA10 Mortgage Pass-through
Certificates, Series 2006-OA10.2
Plaintiffs allege that MERS was not the nominee of America Wholesale
Lenders regarding the Mortgage and Note relevant to the property in question,
but the Mortgage that Plaintiffs signed clearly says that it was. See Defs.’
Mot. Dismiss Ex. B, ECF No. 13-3.
Plaintiffs refer to the trust as Series 2007-OA10 instead of Series
2006-OA10. The Mortgage Assignment lists the trust as Series 2006-OA10. See
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Judgment was entered against Plaintiffs Lisa and Mark Mazza
and in favor of BNYM on August 12, 2015. On September 3, 2015,
Plaintiffs Lisa and Mark Mazza filed an appeal of the judgment
to the Superior Court of Pennsylvania (“Superior Court”). On
September 9, 2016, the Superior Court issued a Memorandum
affirming the foreclosure judgment. Thereafter, Plaintiffs Mark
and Lisa Mazza filed a petition for allowance of appeal of the
judgment in the Pennsylvania Supreme Court, which was denied on
February 28, 2017.
On June 17, 2017, BNYM purchased the Property at a
sheriff’s sale. On June 26, 2017, Plaintiffs Mark and Lisa Mazza
filed a Petition to Set Aside the Sale, which was subsequently
withdrawn on July 17, 2017. On August 8, 2017, the deed to the
Property was delivered to BNYM by the Chester County Sheriff.
The deed was recorded on August 11, 2017. Thereafter, Plaintiffs
Mark and Lisa Mazza filed a second Petition to Set Aside the
Sale, which was denied on September 7, 2017. Plaintiffs Mark and
Lisa Mazza appealed the order denying the Petition to the
Superior Court. On October 11, 2017, the Trial Court ordered
Plaintiffs Mark and Lisa Mazza to file a concise statement of
errors complained of on appeal, but Plaintiffs failed to do so.
On November 22, 2017, Plaintiffs Mark and Lisa Mazza filed a
Defs.’ Mot. Dismiss Ex. C, ECF No. 13-4. The Court will construe Plaintiffs’
version as a typo.
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Petition for Leave to file a concise statement nunc pro tunc,
which was denied by the Trial Court on November 28, 2017.
On August 13, 2018, the Superior Court issued a Memorandum
affirming the Trial Court’s Order denying the Petition to Set
Aside the Sale, which rendered the second appeal involving the
concise statement moot. Plaintiffs Mark and Lisa Mazza are
currently defendants in an ejectment action filed by BNYM which
seeks to evict them from the Property. That matter was removed
to the United States District Court for the Eastern District of
Pennsylvania and remains pending before another judge of this
B. Factual Allegations in the Complaint
The factual allegations in the Complaint largely consist of
conclusory allegations of fraud, as well as some specific
allegations. Plaintiffs’ argument is not entirely clear, but
their theory of fraud in this case appears to stem from the
1. On June 6, 2006 plaintiff Lisa Mazza executed a
mortgage and note with America Wholesale
Lenders-Countrywide Home Loans, for property
located at 1271 Farm Rd. in Berwyn, Pa. before
Theresa Maddy without a notary present.
2. The original mortgage and note were through
America Wholesale Lenders ,a/k/a Countrywide
Home Loans-original servicer, and at that time
neither entity was authorized and permitted to
do business and conduct mortgage transactions
in the state of Pennsylvania.
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3. MERS was not the nominee of America Wholesale
Lenders regarding the mortgage and note
relevant to the property in question.
4. Without authorization and registration to
conduct business in Pennsylvania, the above
originators sold the mortgage/note to Bank of
America and said entity became the servicer of
5. In October 2011 the note was improperly and
fraudulently assigned to Bank of New York
Mellon FKA the Bank of New York Mellon as
trustee for the benefit of certificate Holders
of the CWALT Inc. Alternative Loan Trust 2007OA10. The alleged assignment was allegedly
executed by [Marivel] Castro as employee of
MERS, but at the time this individual was an
employee of Bank of America.
6. Sometime in 2012 Specialized Loan Servicing
became servicer of the loan, and each adult
plaintiff did not receive servicing transfer
notices regarding this new servicer.
7. Subsequent to June 2012, there was an alleged
assignment of mortgage executed by Darren
Bronaugh, assistant secretary of MERS, to the
Bank of New York Mellon. At the time of the
alleged assignment [Darren Bronaugh] was an
employee of Specialized Loan Servicing and it
is averred the assignment was fraudulent,
improper and invalid, including but not limited
to lack of capacity, standing and improper or
8. The CWALT Inc. Alternative Loan Trust 2007 AO10
closed on or about June 29, 2007, nearly 4
years prior to the alleged assignment, making
the assignments above noted to be invalid and
9. Despite requests for genuine wet ink signed
promissory note and deed or mortgage properly
endorsed and notarized, requested from the
named defendants and served by priority mail,
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said parties have not provided said documents
10. Said named defendants failed to respond in
any way to notice and demand for proof of
claim, and further failed to complete and
return forms B10 and 410, and form W10
regarding proof of loss.
Compl. ¶¶ 6, 9, 12, 15-22, 24, ECF No. 1.
Plaintiffs filed seventeen counts, including a variety of
federal and state claims related to Defendants’ alleged
fraudulent conduct. Defendants have filed a motion to dismiss
for failure to state a claim on various grounds. This motion is
ripe for disposition.
III. LEGAL STANDARD
A party may move to dismiss a complaint for failure to
state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). When considering such a motion, the Court must “accept
as true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom, and view them in the
light most favorable to the non-moving party.” DeBenedictis v.
Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir. 2007) (quoting
Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.
To withstand a motion to dismiss, the complaint’s
“[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550
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U.S. 544, 555 (2007). This “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. Although a plaintiff is
entitled to all reasonable inferences from the facts alleged, a
plaintiff’s legal conclusions are not entitled to deference, and
the Court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S.
265, 286 (1986).
The pleadings must contain sufficient factual allegations
so as to state a facially plausible claim for relief. See,
e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187,
190 (3d Cir. 2009). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 557
U.S. 662, 678 (2009)). In deciding a Rule 12(b)(6) motion, the
Court limits its inquiry to the facts alleged in the complaint
and its attachments, matters of public record, and undisputedly
authentic documents if the complainant’s claims are based upon
these documents. See Jordan v. Fox, Rothschild, O’Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Pension Benefit
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993).
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Given that Plaintiffs are pro se, the Court will construe
their pleadings liberally. Higgins v. Beyer, 293 F.3d 683, 688
(3d Cir. 2002).
A. Jurisdictional Issues
Defendants argue that the Court lacks subject matter
jurisdiction because this is a diversity case and Plaintiffs
failed to adequately plead the citizenship of all parties to
this lawsuit. The case is listed in ECF as a diversity case
presumably because Plaintiffs assert in the Complaint that
jurisdiction is pursuant to 28 U.S.C. § 1332 (the diversity
statute). Compl. ¶ 5, ECF No. 1. However, given that Plaintiffs
are pro se, the Court will construe the Complaint liberally and
find that this case is actually a federal question case. See 28
U.S.C. § 1331.
Section 1331 provides that “[t]he district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.” Given
that approximately half of Plaintiffs’ claims arise under a
variety of federal laws (e.g., the Truth in Lending Act, the
National Bank Act, the Racketeer Influenced and Corrupt
Organizations Act, etc.), the Court will construe this as a
federal question case and exercise supplemental jurisdiction
over the remaining state law claims.
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B. Plaintiff Sophia Mazza
Sophia will be dismissed from this action because the
Complaint fails to set forth any allegations that Sophia was a
party to the Mortgage agreement or that she was the legal or
beneficial owner of the property. Given that the Complaint is
devoid of any facts that would show a plausible cause of action
on behalf of Sophia, she will be dismissed from this action.
C. Count I3
1. Statute of Limitations
Count I alleges fraud. Defendants first argue that
Plaintiffs’ claim is barred by a two-year statute of
limitations. “Typically, the two-year period begins to run as
soon as the right to institute and maintain a suit arises.” Toy
v. Metropolitan Life Ins. Co., 863 A.2d 1, 7 (Pa. Super. 2004)
(citing Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000)).
However, there are several doctrines that can toll the statute
of limitations, such as fraudulent concealment.
Construing Plaintiffs’ claims liberally, they have alleged
sufficient facts to raise a plausible argument of tolling based
on fraudulent concealment. “The fraudulent concealment doctrine
operates to stop the statute of limitations from running in
Defendants argue that the Plaintiffs’ claims are barred by the RookerFeldman doctrine and/or res judicata. Given that the Court will grant leave
to Plaintiffs to attempt to state a plausible cause of action, the Court will
not delve into the merits of Defendants’ claims at this time.
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circumstances when the accrual date of a claim has passed but
the ‘plaintiff’s cause of action has been obscured by the
defendant’s conduct.’” In re Cmty. Bank of N. Va. Mortg. Lending
Practices Litig., 795 F.3d 380, 400-01 (3d Cir. 2015) (quoting
In re Linerboard Antitrust Litig., 305 F.3d 145, 160 (3d Cir.
2002)). Plaintiffs must also demonstrate reasonable diligence on
their part, “[b]ut when a wrongful scheme is perpetrated through
the use of common documentation, such as the documents employed
to memorialize each putative class member’s mortgage loan, full
participation in the loan process is alone sufficient to
establish the due diligence element.” Id. at 404. “Due diligence
does not mean that borrowers must presume their bank is lying .
. . and therefore that further investigation is needed. Reading
the blizzard of paper that sweeps before them is ample diligence
in itself . . . borrower[s] ought to be able to rely on the
documents provided by a financial institution.” Id.
Here, Plaintiffs argue that the fraud in this case was not
discoverable in the exercise of reasonable diligence until 2018
because “[f]acts and information were concealed and within the
exclusive possession and control of the defendants in the
instant matter.” Pls.’ Resp. to Defs.’ Mot. Dismiss 11, ECF No.
26. For example, they argue that “[l]ists of officers and
employees of defendants were not available and this information
was in possession and control of defendants,” so there was no
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way for them to determine prior to the expiration of the statute
of limitations that Castro and Bronaugh did not have authority
to assign the Mortgage/Note to BNYM. See id. at 52. Plaintiffs
also appear to have fully participated in the loan process.
Plaintiffs argue that the fraud in this case was discovered
on June 25, 2018. They filed their Complaint on June 25, 2020,
which was the last possible day to meet the statute of
limitations (assuming the doctrine of fraudulent concealment
applies). Given that Plaintiffs are entitled to all reasonable
inferences from the facts alleged, and that the Court must
accept these inferences as true at this stage, the Court will
not dismiss Plaintiffs’ fraud claim as a result of the two-year
statute of limitations.
2. Failure to State a Viable Claim for Fraud
Defendants next argue that Plaintiffs’ fraud claim should
alternatively be dismissed because they fail to set forth a
viable claim. To plead a civil fraud claim under Pennsylvania
law, a plaintiff must plead sufficient facts establishing the
(1) a representation; (2) which is material to the
transaction at hand; (3) made falsely, with knowledge
of its falsity or recklessness as to whether it is
true or false; (4) with the intent of misleading
another into relying on it; (5) justifiable reliance
on the misrepresentation; and (6) the resulting injury
was proximately caused by the reliance.
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Weissberger v. Myers, 90 A.3d 730, 735 (Pa. Super. 2014)
(quoting Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super.
2012)). Under the Federal Rules of Civil Procedure, “a party
must state with particularity the circumstances constituting
fraud or mistake.” Fed. R. Civ. P. 9(b). The Third Circuit has
explained that under Rule 9(b), a plaintiff must plead “all of
the essential factual background that would accompany ‘the first
paragraph of any newspaper story’—that is, the ‘who, what, when,
where and how’ of the events at issue.” In re Rockefeller Ctr.
Props., Inc. Sec. Litig., 311 F.3d 198, 217 (3d Cir. 2002)
(quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1422 (3d Cir. 1997)).
The Court declines to reach the merits of Plaintiffs’ fraud
claim because, as Defendants note, Plaintiffs lack standing to
challenge the validity of the Mortgage/Note assignments between
third parties. See Potoczny v. Aurora Loan Servs., LLC, 33 F.
Supp. 3d 554, 565 (E.D. Pa. 2014) (explaining that Plaintiffs
lacked standing because “whether there was a defect in the
[mortgage] assignment . . . to [Defendant] is immaterial to
[Defendant’s] standing to seek foreclosure as the holder or
possessor of the Note . . . a note securing a mortgage is a
negotiable instrument . . . enforceable by its possessor,
regardless of doubts about the chain of possession”); see also
Dixon v. Stern & Eisenberg, PC, No. 5:14-CV-4551, 2015 WL
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3833782, at *11 (E.D. Pa. June 22, 2015) (holding that Plaintiff
lacked standing to challenge the validity of an allegedly
fraudulent mortgage assignment between two third parties),
aff’d, 652 F. App’x 128 (3d Cir. 2016); English v. Fed. Nat’l
Mortg. Ass'n, No. CIV.A. 13-2028 CCC, 2013 WL 6188572, at *4
(D.N.J. Nov. 26, 2013) (explaining that a Plaintiff alleging
fraudulent mortgage assignment lacked standing because Plaintiff
was not a party or intended third party beneficiary to the
contract and “[i]n the context of a mortgage assignment, case
law has held that a mortgagor, or borrower, does not have
standing to allege that an assignment between two third parties
is invalid”) (collecting cases); In re Walker, 466 B.R. 271, 285
(Bankr. E.D. Pa. 2012) (“Because the Note is a negotiable
instrument and that BNYM is the holder the instrument, the
Debtor lacks standing to assert that BNYM cannot enforce the
Note due to an alleged failure to comply with the [pooling and
As a result of the foregoing, Plaintiffs’ fraud claim will
be dismissed without prejudice. Plaintiffs may file an amended
complaint as to any claims of fraud other than those based on
conduct between two third parties as to which they have no
D. Count II
Count II alleges violations of four sections of the Uniform
Commercial Code (“UCC”): § 3-301, § 3-305, § 3-203, and § 3-309.
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The Court will liberally construe these as violations of the
Pennsylvania UCC, codified at 13 Pa. Cons. Stat. §§ 3301, 3305,
3203, 3309 (2020). Plaintiffs allege that “[b]ased on an
illegality or fraud in the original transaction, defendants
cannot prove they are entitled to enforce the assignments and
mortgage/note.” Compl. ¶ 75, ECF No. 1
However, the Court need not reach the merits of Plaintiffs’
argument because the standing argument expressed in relation to
Count I is equally applicable to Plaintiffs’ UCC arguments under
Count II. See, e.g., Potoczny, 33 F. Supp. 3d at 565 (explaining
the meaning behind § 3301 and holding that Plaintiffs lacked
standing because “whether there was a defect in the [mortgage]
assignment . . . to [Defendant] is immaterial to [Defendant’s]
standing to seek foreclosure as the holder or possessor of the
Note . . . a note securing a mortgage is a negotiable instrument
. . . enforceable by its possessor, regardless of doubts about
the chain of possession”). Plaintiffs do not plead any factual
allegations that would allow the Court to reasonably infer that
BNYM is not the holder of the Note/Mortgage. Consequently, Count
II will be dismissed without prejudice.
E. Counts III and XV
Counts III and XV allege violations of the Federal Trade
Commission Act (“FTCA”), which outlaws unfair methods of
competition and unfair acts or practices that affect commerce.
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But there is no private right of action under the FTCA. See,
e.g., Carpenter v. Kloptoski, No. 1:08-CV-2233, 2011 WL 995967,
at *10 (M.D. Pa. Mar. 17, 2011). Thus, Counts III and XV will be
dismissed with prejudice.
F. Count IV
Count IV alleges violations of the Uniform Deceptive Trade
Practices Act (“UDTPA”), which is a model statute promulgated by
the Council of State Governments in connection with the Federal
Trade Commission (“FTC”). But, unlike the UCC, Pennsylvania has
not adopted the UDTPA outright. See Weinberg v. Sun Co., 740
A.2d 1152, 1156 (Pa. Super. Ct. 1999) (explaining that
Pennsylvania’s Unfair Trade Practices and Consumer Protection
Law (“UTPCPL”) is based on the FTCA, the Lanham Act, and the
UDTPA), aff’d in part, rev’d in part on other grounds, 777 A.2d
442 (Pa. 2001). Thus, even if the Court was to evaluate
Plaintiffs’ claims pursuant to the UTPCPL, it would not be clear
under which provisions Plaintiffs are suing. Given that
Plaintiffs’ response is similarly unhelpful and continues to
assert vague claims under the UDTPA, which does not provide a
cause of action for Plaintiffs, Count IV will be dismissed
G. Count V
Count V alleges violations of the Truth in Lending Act
(“TILA”). Defendants argue that Plaintiffs’ TILA claim must be
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dismissed because (1) it fails to plead sufficient facts
establishing a right to relief and (2) it is barred by the
statute of limitations. However, it is not possible for the
Court to address either of these arguments, since, as Defendants
note, the Complaint (as well as Plaintiffs’ response) fails to
allege sufficient facts which would allow the Court to identify
which (if any) provisions of TILA, which is a voluminous
statute, have been violated. This is crucial not only to address
the merits of Plaintiffs’ claim, but also the statute of
limitations, as the time period differs depending on which
provisions are applicable. See 15 U.S.C. § 1640(e) (providing
that a one-year statute of limitations applies to any action
except those alleging a violation of section 1639, 1639b, or
1639c, for which a three-year statute of limitations applies).
Because the Complaint fails to allege sufficient facts that
would allow the Court to identify a right to relief under TILA
for Plaintiffs, Count V will be dismissed without prejudice. See
Fed. R. Civ. P. 8 (requiring a complaint to contain a short and
plain statement of the claim as to the relief sought).
H. Count VI
In Count VI, Plaintiffs attempt to plead a civil cause of
action against Defendants for violations of 18 U.S.C. §§ 513514, which are federal criminal statutes dealing with forged
securities. Because there is no private cause of action to
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enforce these criminal laws, Count VI will be dismissed with
prejudice. See Cent. Bank of Denver v. First Interstate Bank of
Denver, 511 U.S. 164, 190 (1994) (explaining the Court’s history
of refusing to infer a private right of action from a “bare
criminal statute”); Leeke v. Timmerman, 454 U.S. 83, 85–87
(1981) (explaining that a private party has no right to compel
enforcement of criminal laws).
I. Count VII
Count VII alleges that Defendants violated “12 USC Chapter
2 subchapter 4” by engaging in “various and continuing
fraudulent activities and misrepresentations.” Compl. ¶¶ 87-88,
ECF No. 1. “Subchapter 4” consists of 12 U.S.C. §§ 81-95 of the
National Bank Act (“NBA”). It is not clear which provisions
Plaintiffs believe are applicable to this case, and the Court
cannot find any facts alleged in the Complaint that would state
a facially plausible claim for relief under any of the
provisions in Subchapter 4. Consequently, Count VII will be
dismissed without prejudice.
J. Count VIII
Count VIII alleges violations of the Dodd-Frank Act. But
“the Dodd-Frank Act does not provide for a private right of
action by borrowers against lending institutions.” See, e.g.,
Bell v. LoanDepot.com LLC, No. 19CV00715, 2020 WL 376498, at *4
(W.D. Pa. Jan. 23, 2020) (citing Angino v. Wells Fargo Bank,
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N.A., No. 1:15-CV-418, 2016 WL 787652, at *9 (M.D. Pa. Feb. 19,
2016)). Consequently, Count VIII will be dismissed with
K. Count IX
In Count IX, Plaintiffs attempt to plead a civil cause of
action against Defendants for violations of 18 U.S.C. §§ 19561957, which are federal criminal statutes dealing with money
laundering. Similar to Count VI, because there is no private
cause of action to enforce these criminal laws, Count IX will be
dismissed with prejudice.
L. Count X
Count X alleges violations of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”). To plead a civil RICO claim,
a complaint must plead sufficient facts establishing the
existence of: “(1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.” Warden v. McLelland, 288
F.3d 105, 114 (3d Cir. 2002) (quoting Sedima, S.P.R.L. v. Imrex
Co., 473 U.S. 479, 496 (1985)).
Racketeering activity consists of predicate acts enumerated
in the RICO statute, 18 U.S.C. § 1961(1). The Complaint and
Plaintiffs’ response, however, fail to plead any of the
predicate acts established in section 1961. See DiGiglio v. U.S.
Xpress, Inc., 293 F. Supp. 3d 522, 527 (E.D. Pa. 2018) (“RICO
plaintiff[s] must cite predicate acts which are specifically
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enumerated in 18 U.S.C. § 1961, and acts such as wire fraud and
mail fraud, must be pleaded with particularity as required by
Federal Rule of Civil Procedure 9(b).”).
Given Plaintiffs’ claims in Count IX, the Court can assume
that the predicate acts Plaintiffs are referring to would be
money laundering under 18 U.S.C. §§ 1956-1957. However,
Plaintiffs do not plead any facts that would allow the Court to
draw the reasonable inference that any of the transactions in
this case involved the proceeds of some unlawful activity. Cf.
Brice v. Hoffert, No. 5:15-cv-4020, 2016 WL 4766301, at *7 (E.D.
Pa. Sept. 13, 2016) (holding that an allegation of knowingly
filing false tax returns “fails to qualify as money laundering
because there is no evidence that the transaction involves the
proceeds of some unlawful activity”), rev’d in part on other
grounds sub nom. Brice v. Bauer, 689 F. App’x 122 (3d Cir.
2017). Consequently, Count X will be dismissed without
prejudice. Should Plaintiffs elect to file an amended complaint
including a claim under RICO, they shall submit a RICO case
statement in addition to their claim in the amended complaint,
as this Court has previously ordered Plaintiffs filing a civil
RICO claim to do. See, e.g., Walter v. Palisades Collection,
LLC, 480 F. Supp. 2d 797, 800 n.2 (E.D. Pa. 2007) (Robreno, J.).
M. Count XI
Count XI alleges violations of the Fair Debt Collection
Practices Act (“FDCPA”). However, this claim is clearly barred
by the statute of limitations. Under the FDCPA, a claim may be
brought “within one year from the date on which the violation
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and the statute of limitations should be tolled until they
discovered the FDCPA violations on June 25, 2018, Plaintiffs
would have been required to file suit by June 25, 2019 in order
to fall within the one-year statute of limitations.4
Consequently, since Plaintiffs did not file suit until June 25,
2020, Count XI is barred by the statute of limitations and will
be dismissed with prejudice.
N. Count XII
In Count XII, which is labeled as a claim for “Corporate
Liability,” Plaintiffs allege that Defendants are “solely” and
“jointly” and “severally” and “vicarious[ly]” liable for the
actions of the “aforementioned individuals, servicers,
subsidiaries, corporations” who are allegedly Defendants’
“agents ,servants ,employees, contractors master-servant and
partners.” Compl. ¶ 108, ECF No. 1.
The Court will construe this as a cause of action under
respondeat superior. “However, there is no independent cause of
action for respondeat superior under Pennsylvania law.” Booker
v. Nat’l R.R. Passenger Corp., 880 F. Supp. 2d 575, 586 (E.D.
Pa. 2012) (citing Ford Motor Credit Co. LLC v. Maxwell, No. 101926, 2012 WL 1677248, at *2 (M.D. Pa. May 14, 2012)).
Although the running of the statute of limitations is ordinarily an
issue of fact, the Court may grant a motion to dismiss on this basis if
“[t]he time bar [is] evident on the face of the complaint.” See Perelman v.
Perelman, 545 F. App’x 142, 149 (3d Cir. 2013). For the reasons explained
above, the time bar in this case is evident on the face of the Complaint.
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Plaintiffs’ response argues that “[t]he count does not allege a
separate count or cause of action for respondeat superior,” but
does not explain what the cause of action underlying Count XII
actually is. See Pls.’ Resp. to Defs.’ Mot. Dismiss 69, ECF No.
26. Consequently, Count XII will be dismissed without prejudice
to the extent they would like to plead a non-respondeat superior
corporate liability claim.
O. Count XIII
Count XIII is a claim for “Fabrication/Falsification of
Evidence” due to Defendants’ alleged concealment of the
“original assignments” and fabrication of “invalid assignments.”
Compl. ¶ 110, ECF No. 1. But Plaintiffs have not cited to any
authority that supports a cause of action for
fabrication/falsification of evidence and the Court is not aware
of any such independent cause of action under Third Circuit
precedent or Pennsylvania law. Although there is a standalone
claim for fabrication of evidence under Section 1983 in the
context of fabrication of evidence with respect to criminal
charges, Plaintiffs do not allege that any of the Defendants are
As a result of the foregoing, Count XIII will be dismissed
without prejudice for failure to state a claim upon which relief
can be granted.
P. Count XIV
Case 2:20-cv-03253-ER Document 31 Filed 02/16/21 Page 22 of 24
Count XIV alleges a standalone claim for a breach of the
implied covenant of good faith and fair dealing. But, as the
Third Circuit has recognized, Pennsylvania does not recognize
such an independent action. See Davis v. Wells Fargo, 824 F.3d
333, 352 (3d Cir. 2016) (affirming the dismissal of plaintiff’s
good faith claim upon defendant’s Rule 12(b)(6) motion to
dismiss on the basis that Pennsylvania law does not allow an
independent action for breach of the covenant of good faith and
fair dealing). Consequently, Count XIV will be dismissed without
prejudice for failure to state a claim upon which relief can be
Q. Count XVI
In Count XVI, Plaintiffs set forth a count to allegedly
reserve their right to amend the Complaint. This reservation is
improper, as Rule 15 of the Federal Rules of Civil Procedure
governs the amendment of pleadings, which provides:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend
its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive
pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever
(2) Other Amendments. In all other cases, a party may
amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should
freely give leave when justice so requires.
Case 2:20-cv-03253-ER Document 31 Filed 02/16/21 Page 23 of 24
Fed. R. Civ. P. 15(a). Including a count in a complaint
reserving the right to amend the complaint is not one of the
enumerated methods of amendment. Consequently, Count XVI will be
dismissed with prejudice.
R. Count XVII
Count XVII is a claim for “injuries” against Defendants and
sets forth a number of purported damages allegedly suffered by
Plaintiffs. See Compl. ¶ 126, ECF No. 1. But a request for
damages constitutes one element of a cause of action, rather
than a standalone action. Plaintiffs seem to recognize this,
given that they include a damages provision in each of their
remaining counts. Count XVII will thus be dismissed with
S. Claims for Punitive Damages
Plaintiffs request punitive damages, inter alia, for each
Count in the Complaint. Defendants argue that these requests
should be stricken because “the Complaint is devoid of any
factual allegations indicating that BANA’s state of mind was
motivated by ill-will or rose to a level beyond negligence.”
Defs.’ Mot. Dismiss 25, ECF No. 13. However, Defendants’
argument is now moot, given that the Court has decided to
dismiss all of the Counts in the Complaint for the reasons
explained above. Consequently, it would be premature to go count
by count and determine whether Plaintiffs’ request for punitive
Case 2:20-cv-03253-ER Document 31 Filed 02/16/21 Page 24 of 24
damages should be stricken when it is not clear which counts,
if any, will remain if an amended complaint is filed.
T. Leave to Amend
Leave to amend should be freely granted. Foman v. Davis, 371
U.S. 178, 182 (1962). Plaintiffs are thus granted twenty days
to amend Counts I, II, IV, V, VII, X, XII, XIII, and XIV.
However, Plaintiffs are not granted leave to amend the
following futile Counts: III (no private right of action), VI
(same), VIII (same), IX (same), XV (same), XI (barred by the
statute of limitations), XVI (not a cause of action), XVII
For the reasons set forth above,
1. Defendants' Motion to Dismiss will be granted as to
the following counts with prejudice: Counts III, VI,
VIII, IX, XV, XI, XVI, and XVII.
2. Defendants' Motion to Dismiss will be granted as to
the following counts without prejudice: Counts I, II,
IV, V, VII, X, XII, XIII, and XIV.
3. Plaintiff Sophia Mazza will be dismissed.
4. The five named defendants and ten John Does will be
An appropriate order follows.
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