OWENS et al v. JPMORGAN CHASE BANK et al
Filing
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MEMORANDUM OPINION AND ORDER denying re 36 MOTION for Leave to Amend/Correct 1 Complaint, 18 Amended Complaint filed by THOMAS E. OWENS, DONNA OWENS. Signed by Magistrate Judge Robert C. Mitchell on 7/2/2013. (ajt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS E. OWENS and DONNA
OWENS,
Plaintiffs,
vs
JP MORGAN CHASE BANK and
RESIDENTIAL CREDIT SOLUTIONS,
Defendants.
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Civil Action No. 12-1081
MEMORANDUM OPINION
I. INTRODUCTION
Presently before the Court is Plaintiffs’ Motion to Amend their Complaint [ECF No. 36].
For the reasons that follow, Plaintiffs’ motion is denied.
II. BACKGROUND
Plaintiffs brought the instant action on July 31, 2012 against JPMorgan Chase and
Residential Credit Solutions (“RCS”) alleging that (1) RCS violated the federal Fair Debt
Collection Practices Act (“FDCPA”) by, inter alia, “falsely representing the character, amount,
and legal status of the debt[,]” implicating that the failure to make payments would result in
foreclosure, using false representations to collect late fees, increasing the escrow amount, and
attempting to collect unauthorized fees; (2) that RCS and JPMorgan Chase violated an
underlying Bankruptcy Court Order and should be found in contempt under 11 U.S.C. § 105(a);
(3) that JPMorgan violated Pennsylvania’s Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”); and (4) RCS and JPMorgan violated the Real Estate Settlement Procedures Act
(“RESPA”). Am. Compl. [ECF No. 18] at ¶¶ 40-71.
JPMorgan moved to dismiss the complaint, to which Plaintiffs filed an Amended
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Complaint on January 27, 2013. [ECF No. 18]. RCS filed a motion to dismiss Plaintiffs’
Amended Complaint [ECF No. 25], which the Court granted. Specifically, Plaintiffs’ RESPA
claim against RCS was dismissed with prejudice, their FDCPA claim was dismissed because
they “failed to adequately allege that the mortgage was in default at the time RCS obtained the
servicing rights[;]” and their claim for contempt of the Bankruptcy Court’s Order was dismissed
because “11 U.S.C. § 105(a) does not provide a private right of actions for a violation under 11
U.S.C. § 524.” Memo. Op. [ECF No. 35] at 5, 7, 8.
Plaintiffs filed the instant motion, seeking to amend their complaint a third time, and
attached a copy of the proposed amended complaint. With respect to the claim under the
FDCPA, Plaintiffs seek to amend their complaint to include the following:
At the time RCS obtained servicing rights, RCS and JPMorgan
Chase believed the loan was in default; At the time it obtained
servicing rights, RCS acted as if the loan was in default; RCS is a
“debt collector” under the Fair Debt Collection Procedures Act, 15
U.S.C. § 1692a(6) (hereinafter FDCPA) because it believed the
loan was in default at the time of the servicing transfer, even
though that belief was mistaken.
See Br. in Supp. of Mot. to Amend Compl. [ECF No. 38] at 1.1 Plaintiffs argue that they
have not changed their position to now state the loan was in default
at the time of the servicing transfer[,] . . . [they] maintain the loan
was substantially current at the time of the transfer, and instead . . .
have added the additional paragraphs to provide a well-pled
alternative basis for finding RCS is a debt-collector – that RCS
mistakenly believed the loan was in default at the time it obtained
servicing rights.
Id. at 3.
III. ANALYSIS
Under Federal Rule of Civil Procedure 15(a), a party may amend a pleading “only with
1
Plaintiffs failed to include page numbers on their Brief in Support, therefore the Court will refer to
pagination as it appears on the docket.
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the opposing party’s written consent or the court’s leave. The court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a). This Rule has been interpreted by courts to
mean that “prejudice to the non-moving party is the touchstone for the denial of an
amendment[,]” however, in the absence of prejudice of the non-moving party, denial of an
amendment “must be based on bad faith, or dilatory motives, truly undue or unexplained delay,
repeated failures to cure the deficiency by amendments previously allowed, or futility of
amendment.” Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (citations omitted).
“The mere passage of time does not require that a motion to amend a complaint be denied
on grounds of delay.” Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir. 2001). Delay will become
“undue when a movant has had previous opportunities to amend a complaint[,]” and in making
its determination, the court must “focus on the movant’s reasons for not amending sooner in
analyzing the question of undue delay.” USX Corp. v. Barnhart, 395 F.3d 161, 167-68 (3d Cir.
2004) (citations omitted).
If the movant “offers no explanation for failing to amend the
complaint sooner[,]” delay may become undue. Disabled in Action of Pennsylvania v.
Southeastern Pennsylvania Trans. Auth., 2005 WL 387587, at *2 (E.D.Pa. Feb. 15, 2005) (citing
USX Corp., 395 F.3d at 167).
Allowing a party to amend is futile if “the complaint, as amended, would fail to state a
claim upon which relief could be granted.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
“In assessing futility, the District Court applies the same standard of legal sufficiency as applies
under Rule 12(b)(6).” Id. at 115 (internal quotations and citations omitted).
Under Federal Rule of Civil Procedure 12(b)(6), a 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
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to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(6) is proper only where the averments of the complaint
plausibly fail to raise directly or inferentially the material elements necessary to obtain relief
under a viable legal theory of recovery. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561 (2007).
“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) (citing Twombly, 550
U.S. at 555). Allegations of the complaint must be factually grounded to move the claim from
the realm of mere possibility to one that “is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). Under the post Twombly/Iqbal standard, civil complaints “must
contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) (internal quotations omitted). “In other
words, a complaint must do more than allege the plaintiff’s entitlement to relief. A complaint
has to ‘show’ such an entitlement with its facts.” Id. at 211. (citations omitted).
Plaintiffs have provided no explanation for why they have not amended their complaint
sooner. Plaintiffs have had several opportunities to amend, and have in fact already amended
their complaint. The facts underlying the complaint have been known by the parties for over a
year,2 discovery has been ongoing for almost one year and is set to close in two months.
Moreover, even if Plaintiffs could explain why their proposed amendment should not be denied
on grounds of undue delay, amendment would be futile because the proposed amended
complaint does not save the claims from dismissal under Fed. R. Civ. P. 12(b)(6). Plaintiffs add
no facts to their proposed amended complaint, but rather attempt to supplement their otherwise
threadbare allegations under the FDCPA “with sweeping legal buzz words and conclusions.”
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Compare original complaint [ECF No. 1] at ¶¶ 28, 34, 39 with amended complaint [ECF No. 18] at ¶¶ 34,
59, 66 (adding no new facts but merely adding claims for damages, omitting a citation to RESPA, and adding the
citation to 11 U.S.C. § 105(a)).
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Souders v. Bank of America, 2012 WL 7009007, at *17 (M.D.Pa. Dec. 6, 2010) (dismissing
FDCPA claim); see also Astarita v. Soloman & Soloman, P.C., 2013 WL 1694807, at *2 (D.N.J.
April 18, 2013) (dismissing FDCPA claim under Rule 12(b)(6) where the complaint did not
include the “specific debt which Defendant attempted to collect on, or details about the dates,
times, and manner of the communications Defendant made to Plaintiff in attempting to collect on
that unspecified debt”). Accordingly, Plaintiffs’ motion to amend their complaint is denied.
IV. CONCLUSION
Based on the foregoing, Plaintiffs’ motion to amend their complaint [ECF No. 36] is
denied. An appropriate Order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS E. OWENS and DONNA
OWENS,
Plaintiffs,
vs
JP MORGAN CHASE BANK and
RESIDENTIAL CREDIT SOLUTIONS,
Defendants.
)
)
)
)
)
)
)
)
)
Civil Action No. 12-1081
ORDER
AND NOW, this 2nd day of July, 2013, after consideration of Plaintiffs’ Motion to
Amend their Complaint [ECF No. 36],
IT IS HEREBY ORDERED that said motion is DENIED.
s/Robert C. Mitchell
ROBERT C. MITCHELL
United States Magistrate Judge
cc: All counsel of record via CM/ECF
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