Jobe et al v. Bank of America, National Association et al

Filing 27

MEMORANDUM AND ORDER granting 7 Motion to Dismiss; adopting 14 Report and Recommendations.; finding as moot 21 Motion to Dismiss; finding as moot 23 Motion for Extension of Time to File Response/Reply. the amended complaint (Doc. 18) is STRI CKEN for violating Fed. R. Civ. P. 15(a)(2), and therefore the Motion to Dismiss (Doc. 21) and Motion for Extension of Time to File a Brief in Opposition (Doc. 23) are deemed MOOT. Upon review of the Report and Recommendation of Magistrate Judge Mar tin C. Carlson (Doc. 14), IT IS FURTHER ORDERED that:(1)The Report and Recommendation (Doc. 14) is ADOPTED. (2)Defendants Motion to Dismiss (Doc. 7) is GRANTED.(3)Plaintiffs are granted leave to amend their Complaint within thirty (30) days of the date of this Order. (4) This matter is RECOMMITTED to the Magistrate Judge. Signed by Honorable A. Richard Caputo on 10/6/11 (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IAN JOBE AND CATHERINE JOBE,
CIVIL ACTION NO. 3:10-CV-1710

Plaintiffs,
v.

(JUDGE CAPUTO)
BANK OF AMERICA, N.A., et. al.,
(MAGISTRATE JUDGE CARLSON)
Defendants.

MEMORANDUM

Presently before the Court is the Report and Recommendation of Magistrate Judge
Martin C. Carlson. (Doc. 14). The Report recommends that the Defendants’ Motion to
Dismiss the Complaint (Doc. 7) be granted, and that the Plaintiffs be given leave to file an
amended complaint. The Court will adopt the Report and Recommendation in full and will
recommit the matter to the Magistrate Judge for further proceedings.
I. Background
Plaintiffs, a husband and wife proceeding pro se, initiated this action on August 16,
2010, alleging violations of the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. §
1692 et seq., the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the Real
Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. They also seek to
quiet title to their property pursuant to Pennsylvania Rule of Civil Procedure 1061. In their
Complaint, the Plaintiffs name Bank of America, N.A. (“Bank of America”) and BAC Home

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Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP (“BAC Home Loans”), and
John Doe 1-10 as Defendants. Plaintiffs seek various forms of injunctive relief, declaratory
judgments, and monetary awards in excess of $1,000,000 plus costs.
Plaintiffs allege that they are the owners of real property located in Monroe County,
Pennsylvania (“the Homestead”). They maintain that they have not entered into any
agreements with any of the Defendants and that “Defendants are not the owner or holder
of any Promissory Note or Mortgage encumbering the Homestead.” (Doc. 1 at ¶¶ 20-21).
On September 6, 2009, Plaintiff Catherine Jobe received a document from Bank of
America Home Loans which purported to be an “Adjustable Rate Mortgage (ARM) Interest
Rate Adjustment Notice.” In response, on September 29, Plaintiff Catherine Jobe apparently
mailed a response to BAC which she titled a “Qualified Written Request Under RESPA.”
That letter disputed the mortgage–“stating Plaintiff’s belief that the account is in error;
notifying BAC that any negative credit reporting would be a RESPA and FCRA violation; and
requesting . . . a payoff statement.” (Doc. 1 at ¶ 23). That same day, Plaintiff Catherine
Jobe also claims to have sent a letter to Bank of America Home Loans described as a
“Notice Under Fair Debt Collection Practices Act Via U.S. Certified Mail, Return Receipt
Requested,” which further disputed the mortgage and requested all information allowable
under the FDCPA. (Doc.1 at ¶ 25). The Plaintiffs allege that Bank of America failed to
respond to either of these letters. (Doc. 1 at ¶¶ 24, 26). However, on January 15, 2010,
Plaintiffs claim to have received a letter from BAC Home Loans stating that the information
they requested above exceeded the scope of that available under 12 U.S.C. § 2605, and that
the Wells Fargo Bank, N.A. was the current holder of the mortgage note. (Doc. 1 at ¶ 27).
Further communication ensued between the parties resulting in five additional efforts
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by the Defendants to respond to the Plaintiffs’ requests for information. (Doc. 1 at ¶¶ 28-33).
While unclear, the correspondence from both Bank of America and BAC included a “Home
Loan Summary,” “Escrow Account Review,” a statement, and other loan documents. (Doc.
1 at ¶¶ 28-32). Plaintiffs, however, declare that Defendant Bank of America “did not verify
or include any proof or validation of the alleged debt.” (Doc. 1 at ¶ 32). The Plaintiffs
additionally claim that a TransUnion credit report dated August 9, 2010, for Plaintiff
Catherine Jobe showed “BAC Home Loans SERV LP #70918946 ... Past Due: $25,254.”
(Doc. 1 at ¶ 34). However, an Experian credit report dated August 10, 2010, for Plaintiff Ian
Jobe stated that the mortgage was paid and closed. (Doc. 1 at ¶ 35).
Plaintiffs claim that Defendants have no interest in the Homestead whatsoever. The
Defendants, in turn, appear to allege that they have “merely performed their duties as a
mortgage servicer.” (Doc. 8 at 7). Unfortunately, the record is devoid of any allegations,
documents, or any substantial information serving to clarify the nature of the business
relationship between Plaintiffs and Defendants, or the current status of any mortgages.
Defendants have filed a joint motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
The Magistrate Judge recommends that Defendant’s Motion to Dismiss be granted and that
the Plaintiffs be given leave to amend their Complaint. (Doc. 14). Plaintiffs have filed an
objection to the Report and Recommendation (Doc. 16), and have taken the further liberty
of filing an Amended Complaint. (Doc. 18). As such, the Defendants have filed a Motion to
Dismiss the Amended Complaint (Doc. 21), and Plaintiffs have motioned for an extension
of time to file a brief in opposition. (Doc. 23).
For the reasons below, the Court will grant the Magistrate Judge’s Recommendation
that the Motion to Dismiss be granted and that the Plaintiffs be given leave to amend their
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Complaint. However, the Amended Complaint already filed (Doc. 18) will be stricken as
violating Federal Rules of Civil Procedure Rule 15(a)(2), and the Motion to Dismiss (Doc. 21)
and Motion for Extension of Time to File a Brief in Opposition (Doc. 23) will be deemed moot
as a result.
II. Discussion
A. Legal Standard for Reviewing a Report and Recommendation
Where objections to the Magistrate Judge’s report are filed, the court must conduct
a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099,
1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both
timely and specific, Goney v. Clark, 749 F.2d 5, 6–7 (3d Cir. 1984). In making its de novo
review, the court may accept, reject, or modify, in whole or in part, the factual findings or
legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829
F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the
court to rely on the recommendations of the magistrate judge to the extent it deems proper.
See United States v. Raddatz, 447 U.S. 667, 675–76 (1980); Goney, 749 F.2d at 7; Ball v.
United States Parole Comm’n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested
portions of the report may be reviewed at a standard determined by the district court. See
Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court
should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v.
Chater, 990 F. Supp. 375, 376–77 (M.D. Pa. 1998).
Here, the Court reviews the portions of the report and recommendation which the
Jobe Plaintiffs object to de novo. The remainder of the report and recommendation is

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reviewed for clear error.
B. Legal Standard for a Motion to Dismiss
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The statement
required by Rule 8(a)(2) must give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)
(quoting Twombly, 550 U.S. at 555). Detailed factual allegations are not required. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, mere conclusory statements
will not do; “a complaint must do more than allege the plaintiff’s entitlement to relief.” Fowler
v. UPMC Shadyside, 578 F.3d 203, 211. Instead, a complaint must “show” this entitlement
by alleging sufficient facts. Id. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009).
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in
whole or in part, for failure to state a claim upon which relief can be granted. When
considering a Rule 12(b)(6) motion, the Court’s role is limited to determining if a plaintiff is
entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232,
236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id.
A defendant bears the burden of establishing that a plaintiff’s complaint fails to state a claim.
See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint,
a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations
“‘to raise a reasonable expectation that discovery will reveal evidence of’” each necessary
element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556).

“The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 129 S. Ct. at 1949. “When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The
Court may also consider “undisputedly authentic” documents when the plaintiff’s claims are
based on the documents and the defendant has attached copies of the documents to the
motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not
alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263
& n.13 (3d Cir. 1998), or credit a complaint’s “‘bald assertions’” or “‘legal conclusions,’” Morse
v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
C. Fair Debt Collection Practices Act (“FDCPA”)
The Plaintiffs argue in their Second Cause of Action that the Defendants violated the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. However, since the FDCPA
only applies to debt collectors, such an allegation requires that the Defendant was acting as

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a “debt collector” within the meaning of the Act. The FDCPA defines a “debt collector” as:
any person who uses an instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the collection of any debts,
or who regularly collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another. . . . the term includes any
creditor who, in the process of collecting his own debts, uses any name other
than his own which would indicate that a third person is collecting or attempting
to collect such debts. . . . such term also includes any person who uses any
instrumentality of interstate commerce or the mails in any business the
principal purpose of which is th enforcement fo security interests.
15 U.S.C.§ 1692a(6).
In their Complaint, Plaintiffs fail to allege facts showing that the Defendants were in
fact acting as debt collectors. Plaintiff mere asserts that the letter from Bank of America was
“essentially an attempt to collect a debt.” (Doc. 1 at ¶ 45). Moreover, even if Defendants
were deemed debt collectors, “the FDCPA is not applicable to a creditor seeking to recover
a debt owed to it.” Conklin v. Purcell, Krug & Haller, No. 05-1726, 2007 WL 404047, *5
(M.D. Pa. Feb, 1, 2007); Police v. Nat’l Tax Funding, LP., 225 F.3d 379, 403 (3d Cir. 2000)
(“Creditors—as opposed to ‘debt-collectors’—generally are not subject to the FDCPA.”)
(internal citations omitted). This exemption applies equally to mortgage servicing companies.
Conklin, 2007 WL 404047, at *5 (citations omitted); Sponaugle v. First Union Mortg. Corp.,
40 Fed.Appx. 715, 717 n.2 (3d Cir. 2002). As such, Bank of America and BAC Home Loans
simply do not fall within the definition of “debt collector” and thus are not within the purview
of the FDCPA.
Plaintiff challenges this assertion, asserting that the FDCPA applies to anyone who
attempts to collect a debt and that no legitimate debt is being sought in the instant case.
(Doc. 1 at ¶ 56). However, even if Defendants Bank of America and BAC Home Loans were
considered debt collectors under the Act, the Plaintiff’s claims pursuant to the FDCPA in
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Counts I and II of the Complaint should still be dismissed as they require that the initial
communication between the consumer and debt collector be “in connection with the
collection of any debt.” 15 U.S.C. § 1692g(a). Here, the correspondence in question, as
alleged by the Jobes, was not an attempt to collect a debt. Instead, it was simply performing
the duties of a mortgage servicer by providing information to the Plaintiffs.
Finally, the Plaintiffs do not allege facts which would explain why they believe the
actions of the Defendants were false, deceptive or misleading as alleged in Count III of the
Second Cause of Action. This is a significant omission since, as a general rule, “[p]ursuant
to Rule 9(b), a plaintiff averring a claim in fraud must specify ‘ “the who, what, when, where,
and how: the first paragraph of any newspaper story.”’ Advanta Corp. Sec. Litig., 180 F.3d
525, 534 (3d Cir.1999) (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990)).
“Although Rule 9(b) falls short of requiring every material detail of the fraud such as date,
location, and time, plaintiffs must use ‘alternative means of injecting precision and some
measure of substantiation into their allegations of fraud.’” In re Rockefeller Ctr. Props. Secs.
Litig., 311 F.3d 198, 216 (3d Cir. 2002) (quoting In re Nice Sys., Ltd. Secs. Litig., 135
F.Supp.2d 551, 577 (D.N.J. 2001)). Therefore, while the Defendants state in a conclusory
manner that “[t]hese activities constitute unfair and unconscionable means to collect or
attempt to collect any debt” (Doc. 1 at ¶ 55), this amount of specificity is not sufficient.
As such, Plaintiff’s have failed to meet their burden in pleading sufficient facts to state
a claim pursuant to the FDCPA. As such, the Court agrees with the Magistrate Judge’s
determination that these claims should be dismissed.

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D. Fair Credit Reporting Act (“FCRA”)
The Plaintiffs also allege that the Defendants violated provisions of the Fair Credit
Reporting Act (FCRA), resulting in a negative effect on the Plaintiffs’ credit reports.
As the Magistrate Judge explained, the FCRA requires a consumer to first contact the
consumer reporting agency and inform the agency that it is working with disputed
information. See 15 U.S.C. §§ 1681i(a)(1-2), 1681s-2(b). Such reporting then prompts the
agency to then contact the provider of the information, in this case presumably one or more
of the defendants, who would then incur the duties as provided by the Act. Id.
In this case, nothing in the Plaintiffs’ Complaint indicates that they have complied with
the procedures prescribed by the FCRA. Specifically, Plaintiffs allege absolutely no contact
with any consumer reporting agency regarding this dispute, a necessary prerequisite to this
claim. In contesting this finding by the Magistrate Judge, Plaintiff’s attempt to excuse their
failure to report as a right to remain silent under the First, Fifth, Ninth and Tenth
Amendments to the United States Constitution. Regardless, Plaintiffs allegations and
statements fail to meet the explicit statutory requirements of the FCRA. Accordingly, the
Defendants’ motion to dismiss this claim should be granted.
E. Real Estate Settlement Procedures Act (“RESPA”)
The Plaintiffs further allege that the Defendants have failed to respond to their
inquiries, failed to notify them regarding transfer of loan servicers, and failed to properly
apply payments to their account in violation of the Real Estate Settlement Procedures Act
(RESPA), 12 U.S.C. § 2601 et seq. (Doc. 1 at ¶¶ 63-67).
RESPA mandates that “servicer[s] of any federally related mortgage loan shall notify

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the borrower in writing of any assignment, sale, or transfer of the servicing of the loan to any
other persons” as well as mandating other certain time restrictions and content requirements.
12 U.S.C. § 2605(b). RESPA also allows consumers to access information regarding their
settlement and mortgage obligations by implementing requirements that creditors respond
to borrower inquiries in a timely and detailed fashion. 12 U.S.C. § 2605(e).
The Court agrees with the Magistrate Judge, that on the facts alleged, the Plaintiffs
have failed to plead a proper RESPA claim. While difficult to discern, the essential thrust of
Plaintiffs’ RESPA claim is that the Defendants failed to respond to Plaintiffs’ initial RESPA
request, disputing the allegedly unidentifiable debt. (Doc. 1 at ¶ 23). Problematically,
however, “alleging a breach of RESPA duties alone does not state a claim under RESPA.
Plaintiffs must, at a minium also allege that the breach resulted in actual damages.”
Hutchinson v. Delaware Sav. Bank FSB, 410 F.Supp. 2d 374, 383 (D..N.J. 2006) (citing 12
U.S.C. § 2605(f)(1)(A)). Here, the Plaintiffs have failed to allege that they suffered any
concrete damages as a result of the Defendants actions whatsoever. As such, the Plaintiffs
have failed to plead sufficient facts which state a claim pursuant to RESPA and the Court
agrees with the Magistrate Judge’s determination that this claim should be dismissed.
F. Action to Quiet Title to Property
Pennsylvania Rule of Civil Procedure 1061 provides that an action to quiet title may
be brought “where an action of ejectment will not lie, to determine any right, lien, title or
interest in the land or determine the validity or discharge of any document, obligation or deed
affecting any right, lien, title or interest in land.” Pa.R.C.P No. 1061.
Simply, the Plaintiffs have failed to allege that the Defendants have stated any “right
lien, title or interest in the land” or that there is any “document, obligation or deed affecting
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any right, lien, title or interest in land” in question here. Pa.R.C.P. No. 1061. The Court
agrees with the Magistrate Judge’s determination that the Complaint does not provide
sufficient information to make an informed decision as to the nature of the relationship
between the parties, what parties have an interest in the land, and who might have a lawful
claim to the Plaintiffs’ property. Accordingly, the Plaintiffs have failed to plead sufficient facts
to support a claim for quiet title, and Defendants’ motion to dismiss is granted.
As the pro se complaint does not contain sufficient facts upon which relief may be
granted, the Court will adopt the Magistrate Judge’s determination that these allegations
should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. However,
the Court also recognizes that pro se plaintiffs often should be afforded an opportunity to
amend a complaint before the complaint is dismissed in its entirety. See Fletcher-Hardee
Corp. V. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007); Alston v. Parker, 363
F.3d 229, 235 (3d Cir. 2004) (“even when a plaintiff does not seek leave to amend, if a
complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a curative
amendment, unless an amendment would be inequitable or futile.”). As such, by dismissing
these remaining allegations without prejudice, the Court will allow one final effort by the
Plaintiff to comply with the appropriate pleading standards.

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III. Conclusion
For the reasons explained above, the Report and Recommendation will be adopted.
The defendants’ Motion to Dismiss (Doc. 7) will be granted in full, and the Plaintiffs will be
given leave to amend their Complaint.
An appropriate order follows.

October 6, 2011
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IAN JOBE AND CATHERINE JOBE,
CIVIL ACTION NO. 3:10-CV-1710

Plaintiffs,
v.

(JUDGE CAPUTO)
BANK OF AMERICA, N.A., et. al.,
(MAGISTRATE JUDGE CARLSON)
Defendants.

ORDER
NOW this 6th day of October, 2011, the amended complaint (Doc. 18) is STRICKEN
for violating Fed. R. Civ. P. 15(a)(2), and therefore the Motion to Dismiss (Doc. 21) and
Motion for Extension of Time to File a Brief in Opposition (Doc. 23) are deemed MOOT.
Upon review of the Report and Recommendation of Magistrate Judge Martin C. Carlson
(Doc. 14), IT IS FURTHER ORDERED that:
(1)

The Report and Recommendation (Doc. 14) is ADOPTED.

(2)

Defendants’ Motion to Dismiss (Doc. 7) is GRANTED.

(3)

Plaintiffs are granted leave to amend their Complaint within thirty (30) days of
the date of this Order.

(4)

This matter is RECOMMITTED to the Magistrate Judge.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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