LEE et al v. US BANK, NA et al, No. 1:2015cv05534 - Document 13 (D.N.J. 2016)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 3/21/16. (js)
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LEE et al v. US BANK, NA et al Doc. 13 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY J ENNIFER AND KERRY LEE, : : Plaintiffs, v. Hon. J oseph H. Rodriguez Civil Action No. 15-5534 : OPINION US BANK, N.A. AS TRUSTEE FOR CSAB : MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 20 0 6-2, : AMERICA’S SERVICING COMPANY, J OHN DOE INVESTORS, : Defendants. : This m atter is before the Court on a m otion to dism iss the Com plaint filed by Defendants [Doc. 8]. The Court reviewed the subm issions of the parties and has decided the m otion on the papers pursuant to Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendants’ m otion will be granted. Background Plaintiffs J ennifer and Kerry Lee owned a property located at 120 Cherokee Drive, Pem berton Township, New J ersey. They allege that Defendants wrongfully denied them a m ortgage m odification in violation of their contractual obligations. Plaintiffs took out a loan on May 31, 20 0 6 in the am ount of $ 237,60 0 , and executed a Note to secure that debt in favor of lender First Mutual 1 Dockets.Justia.com Corporation. (Bender Cert., Ex. A.) The prom issory note was secured by a m ortgage signed by Plaintiffs with Mortgage Electronic Registration Systems, Inc., as nom inee for First Mutual Corporation, its successors and assigns; the m ortgage was secured by the Cherokee Drive property. (Bender Cert., Ex. B.) On April 17, 20 0 9, Mortgage Electronic Registration Systems, Inc., as nom inee for First Mutual Corporation its successors and assigns, assigned the Plaintiffs’ m ortgage to Defendant US Bank National Association as Trustee for CSAB Mortgage-Backed Pass-Through Certificates Series 20 0 6-2 (“US Bank”). (Bender Cert., Ex. C.) Plaintiffs failed to m ake their m onthly m ortgage payments and their loan went into default on December 1, 20 0 8. (Bender Cert., Ex. D.) They applied to Defendant Am erica’s Servicing Com pany (“ASC”), the servicing com pany for Defendant US Bank, for m odification assistance in early 20 0 9. (Com pl., ¶ 9.) On November 17, 20 0 9, Plaintiffs were provided with a Special Forbearance Agreement. (Bender Cert., Ex. D.) The agreement required Plaintiffs to m ake three m onthly payments of $ 2,220 .43 on December 10 , 20 0 9, J anuary 10 , 20 10 , and February 10 , 20 10 . (Id.; Com pl., ¶ 11.) Plaintiffs m ade each of those payments as well as a subsequent payment of $ 1,833 in March of 20 10 . (Com pl., ¶ 13-14.) However, Plaintiffs were not granted a perm anent loan m odification. (Com pl., ¶ 15.) 2 Rather, U.S. Bank filed a Foreclosure Action on April 20 , 20 0 9. (Bender Cert., Ex. F.) That m atter was litigated, and final judgm ent was entered on behalf of US Bank on April 14, 20 14. (Bender Cert., Ex. G.) The Cherokee Drive property was sold at sheriff’s sale on September 15, 20 14. (Bender Cert., Ex. I.) Plaintiffs filed this action in New J ersey Superior Court on March 17, 20 15. Defendants rem oved the case to this Court on J uly 14, 20 15. In Count One of the Com plaint, Plaintiffs allege that Defendants are liable for breach of contract (the Special Forbearance Agreem ent) for failure to provide a loan m odification. Count Two alleges consumer fraud in violation of the New J ersey Consum er Fraud Act, N.J . Stat. Ann. § 56:8-1 (“NJ CFA”) in that Defendants m ade false prom ises regarding final m odification. Counts Three, Four, and Five assert fraud, negligence, and breach of the duty of good faith and fair dealing. Count Six states that Defendants’ representations under the Forbearance Agreem ent constituted false, deceptive, or m isleading representations or m eans in violation of Section 80 7 of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e (“FDCPA”). Applicable Standard Federal Rule of Civil Procedure 12(b)(6) allows a party to m ove for dism issal of a claim based on “failure to state a claim upon which relief can 3 be granted.” Fed. R. Civ. P. 12(b)(6). A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a m otion to dism iss pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are taken into consideration. 1 See Chester County Interm ediate Unit v. Pa. Blue Shield, 896 F.2d 80 8, 812 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultim ately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (20 0 7). Instead, the Court sim ply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7). “A claim has facial plausibility2 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 1“Although a district court m ay not consider m atters extraneous to the pleadings, a document integral to or explicitly relied upon in the com plaint m ay be considered without converting the m otion to dism iss into one for sum m ary judgment.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 20 0 2) (internal quotation m arks and citations om itted) (em phasis deleted). Accord Lum v. Bank of Am ., 361 F.3d 217, 221 n.3 (3d Cir. 20 0 4) (citations om itted). 2 This plausibility standard requires m ore than a m ere possibility that unlawful conduct has occurred. “When a com plaint pleads facts that are 4 defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (citing Twom bly, 550 U.S. at 556). “Where there are wellpleaded factual allegations, a court should assum e their veracity and then determ ine whether they plausibly give rise to an entitlem ent to relief.” Iqbal, 556 U.S. at 679. The Court need not accept “‘unsupported conclusions and unwarranted inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 20 0 7) (citation om itted), however, and “[l]egal conclusions m ade in the guise of factual allegations . . . are given no presum ption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 60 7, 60 9 (D.N.J . 20 0 6) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170 , 177 (3d Cir. 20 0 7) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 20 0 5) (“[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a com plaint when deciding a m otion to dism iss.”)). Accord Iqbal, 556 U.S. at 678-80 (finding that pleadings that are no m ore than conclusions are not entitled to the assum ption of truth). Further, although “detailed factual allegations” are not necessary, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlem ent to relief’ ‘m erely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlem ent to relief.’’” Id. 5 requires m ore than labels and conclusions, and a form ulaic recitation of a cause of action’s elem ents will not do.” Twom bly, 550 U.S. at 555 (internal citations om itted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by m ere conclusory statements, do not suffice.”). Thus, a m otion to dism iss should be granted unless the plaintiff’s factual allegations are “enough to raise a right to relief above the speculative level on the assum ption that all of the com plaint’s allegations are true (even if doubtful in fact).” Twom bly, 550 U.S. at 556 (internal citations om itted). “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Analysis The Special Forbearance Agreem ent signed by Plaintiffs provides: This Agreement tem porarily accepts reduced installm ents or m aintains regular m onthly paym ents as outlined . . . below. Upon successful com pletion of the Agreement, your loan will not be contractually current. Since the installm ents may be less than the total am ount due you m ay still have outstanding payments and fees. Any outstanding payments and fees will be reviewed for a loan m odification. If approved for a loan m odification, based on investor guidelines, this will satisfy the rem aining past due payments on your loan and we will send you a loan m odification agreement. An additional contribution m ay be required. 6 The lender is under no obligation to enter into any further agreement, and this Agreem ent shall not constitute a waiver of the lender’s right to insist upon strict performance in the future. While the language in the contract provides that Defendants will review Plaintiffs’ case for a loan m odification, it does not prom ise a loan m odification upon Plaintiffs’ successful com pletion of their payment requirements. The Agreement bases approval for a loan m odification on “investor guidelines,” and states that if Plaintiffs are approved, Defendants would send Plaintiffs a separate loan modification agreement. See also Stolba v. Wells Fargo & Co., No. 10 -cv-60 14, 20 11 WL 34440 78, *3 (D.N.J . Aug. 8, 20 11) (“the plain language of the relevant TPP docum ents m akes clear that satisfying the TPP conditions for permanent m odification does not guarantee that Plaintiff would receive such m odification”). Plaintiffs do not dispute that Defendants did review their situation for m odification, but found that Plaintiffs did not qualify, based upon investor guidelines. Accordingly, Plaintiffs have not alleged sufficient facts to state a cause of action for breach of contract. To state a valid claim for a violation of the NJ CFA, a plaintiff m ust allege each of the following elem ents: “‘(1) unlawful conduct by the defendant; (2) an ascertainable loss on the part of the plaintiff; 1 and (3) a An ascertainable loss is a loss that is “quantifiable or m easurable”; it is not “hypothetical or illusory.” Lee v. Carter-Reed Co., LLC, 20 3 N.J . 496, 522 1 7 causal relationship between the defendant’s unlawful conduct and the plaintiff’s ascertainable loss.’” Weinberg v. Sprint Corp., 173 N.J . 233, 250 (20 0 2). See also Maniscalco v. Brother Int’l Corp., 627 F. Supp. 2d 494, 499 (D.N.J . 20 0 9). Plaintiffs have not alleged that Defendants prom ised to extend a loan m odification agreement. Under the terms of the Special Forbearance Agreem ent, approval for a permanent loan m odification was tied to investor guidelines. As such, Plaintiffs fail to allege Defendants’ “unlawful conduct, which they claim encom passed an unconscionable practice or violation of law; detail m aterial m isrepresentations they reasonably relied upon resulting in dam ages; or proffer facts dem onstrating a business practice to m aterially conceal inform ation that ultim ately induced them to act.” Miller v. Bank of Am . Hom e Loan Servicing, L.P., 110 A.3d 137, 145 (N.J . Super. Ct. App. Div. 20 15). As to the rem aining claim s, Plaintiffs have failed to address Defendants’ arguments for dism issal, so those claim s will be dism issed as abandoned. Plaintiffs will be granted leave to file a Motion to Am end the Com plaint within 20 days insofar as they wish to assert claim s not considered here or claim s that would not be barred by the legal holdings the (20 10 ); see also Barows v. Chase Manhattan Mortgage Corp., 465 F. Supp. 2d 347, 353 (D.N.J . 20 0 6). 8 Court has m ade herein. See Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 20 0 8) (providing that plaintiffs whose claim s are subject to a Rule 12(b)(6) dism issal should be given an opportunity to am end their com plaints unless am endment would be inequitable or futile). An appropriate Order will be entered. Dated: March 21, 20 16 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ USDJ 9
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