Davis v. Fein Such Kahn & Shepard PC

• Decision Date: 24 April 2019
• Docket Number: Civil Action No. 18-8560
• Parties: SHARON DAVIS, Plaintiff, v. FEIN SUCH KAHN & SHEPARD PC, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

SHARON DAVIS, Plaintiff, v. FEIN SUCH KAHN & SHEPARD PC, et al., Defendants.

Civil Action No. 18-8560

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

April 24, 2019

Not for Publication

OPINION

John Michael Vazquez, U.S.D.J.

In this case, pro se Plaintiff Sharon Davis alleges that several banks, mortgage servicing companies, law firms, and related entities/individuals (the "Defendants")¹ fabricated documents in connection with two foreclosure proceedings and one bankruptcy proceeding involving Plaintiff as well as engaged in a conspiracy to deprive Plaintiff of her house. D.E. 1, 1-1 (collectively the "Complaint" or "Compl."). Plaintiff alleges four causes of action: (I) abuse of legal process; (II) civil conspiracy; (III) illegal consumer collection under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; and New Jersey Consumer Fraud Act ("NJCFA"), N.J.S.A. § 56:8-1; and (IV) violations of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §§ 1961, 1962(b), and 1964. D.E. 1-1.

Currently pending before the Court are Defendants' motions to dismiss Plaintiff's Complaint. D.E. 5, 8, 10, 13, 14, 23. The Court reviewed the parties' submissions² and decided the motions without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below, the Complaint is dismissed.

I. INTRODUCTION³

This case concerns a mortgage, two foreclosure proceedings, and a bankruptcy proceeding. On July 28, 2003, Plaintiff executed a promissory note for $133,000.00 with M.L. Moskowitz d/b/a Equity Now secured by a mortgage (the "Mortgage") on her property. Compl. ¶ 70; D.E. 23-1, Ex, A-B. Equity Now assigned the Mortgage to Chase Manhattan Mortgage Corporation ("Chase")⁴ (the "First Assignment") on August 11, 2004. Compl. ¶ 71; D.E. 23-1, Ex. C. In July 2008, Chase brought a foreclosure action against Plaintiff in the New Jersey Superior Court,Chancery Division, Union County (Docket No. F-40772-08) (the "2008 Foreclosure Action"), Compl. ¶ 72, but the action "was dismissed after the Plaintiff accepted a trial loan modification on March 11, 2009," id. ¶ 73, see also D.E. 5-3, Ex. C (the loan modification agreement). Defendant FSKS represented Chase in this action. Id. ¶ 17.⁵

Chase then assigned the Mortgage to Defendant Bayview on March 4, 2014 (the "Second Assignment"). Compl. ¶ 75; D.E. 23-1, Ex. D. Plaintiff alleges that Defendants Schienbach and PP were involved in drafting the Second Assignment. Compl. ¶¶ 2, 14, 30. Defendant Johnson signed the Second Assignment as representative from JP, and Defendant Nelson notarized it. Id. ¶¶ 15, 16. On July 15, 2014, Bayview brought a foreclosure action against Plaintiff in the Superior Court of New Jersey, Chancery Division, Union County (Docket No. F-028783-14) for failing to make an installment payment on May 1, 2010 (the "2014 Foreclosure Action"). Id. ¶ 76; D.E. 23-1, Ex. E. Defendant FSKS represented Bayview in this action. Id. ¶ 76. Defendant Diaz submitted a certification in support of Bayview. Compl. ¶¶ 7, 36. This action resulted in a final judgment in favor of Bayview on November 4, 2016. Compl. ¶ 78; D.E. 23-1, Ex. H. On December 3, 2016, Plaintiff filed for Chapter 13 bankruptcy in the United States Bankruptcy Court for the District of New Jersey (Docket No. 16-33116) (the "2016 Bankruptcy Action"). Compl. ¶ 19; D.E. 23-1, Ex. J. On January 18, 2017, Bayview assigned the Mortgage to Defendant U.S. Bank (the "Third Assignment"). Compl. ¶ 97; D.E. 23-1 Ex. I. Defendant Riggsby signed the Third Assignment as "Vice President of Bayview Loan Servicing, LLC by Caliber Home Loans," and Defendant Junkin notarized it. Compl. ¶¶ 9, 10, 27, 29. Plaintiff alleges that both Riggsby and Junkin are actually employees of Defendant Orion. Id. ¶¶ 9, 10. U.S. Bank then filed a Proof of Claim in the 2016 Bankruptcy Action on May 23, 2017. Id. ¶ 20. Defendant PHDJ represented U.S. Bank, and Defendant Nealy represented Plaintiff. Id. ¶¶ 17, 23.

Plaintiff filed her Complaint in the present matter on April 30, 2018, alleging (I) abuse of legal process; (II) civil conspiracy; (III) illegal consumer collection under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; and New Jersey Consumer Fraud Act ("NJCFA"), N.J.S.A. § 56:8-1; and (IV) violations of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §§ 1961, 1962(b), and 1964. Id. ¶¶ 88-111. At the core of each of Plaintiff's claims is the allegation that documents submitted to, and relied upon by, the courts in these prior and ongoing proceedings are fabricated. Id. at 3. Plaintiff alleges that Defendants engaged in "robo-signing[,]" meaning the "[p]rocess of mass production of false and forged execution of mortgage assignments, . . . and other legal documents related to mortgage foreclosure and legal matters being created by persons without knowledge of the facts being attested to." Id. ¶ 64(e) n.13.

Plaintiff's Complaint is not a model of clarity. Aside from the litany of conclusory allegations, the Court identified the following factual allegations supporting this theory. All of Plaintiff's factual allegations relate to either the 2008 Foreclosure Action, the 2014Foreclosure Action, or the 2016 Bankruptcy Action. Regarding the 2008 Foreclosure Action, Plaintiff alleges that Whitney K. Cook (not a Defendant), an employee of Defendant Chase and "known robo-signer," submitted an affidavit and supplemental certification to the Superior Court of New Jersey on Chase's behalf. Compl. ¶¶ 50, 51, 64(d), 64(e)(4), 68, 97, 102. Regarding the 2014 Foreclosure Action, Plaintiff alleges (1) that Defendant Diaz, a Vice President at Bayview, submitted a certification to the Superior Court of New Jersey on Bayview's behalf that constitutes "robo-signing" because it was "void of calculations or amounts due" and included a signature that was "unlike" or "did not match" another signature by Diaz that Plaintiff located, id. ¶¶ 7, 36, 36 n.6, 77, 97; and (2) that the Second Assignment, which the Superior Court of New Jersey relied upon, contained "robo-singing" because notary Defendant Nelson's signature "d[id] not match" that supplied by the Louisiana Secretary of State, id. ¶¶ 16, 64(e)(3). Regarding the 2016 Bankruptcy Action, Plaintiff alleges that the Third Assignment, included in U.S. Bank's Proof of Claim, included a misrepresentation by Defendant Riggsby, a "robo-signer," indicating that she was Vice President of Bayview when really, she was an employee of Orion, Compl. ¶¶ 27, 28, 60, 60 n.9, 64(e)(2), 82. Plaintiff's pleading labels these above assertions as "general allegations and facts common to all counts." Id. at 17.

Defendants moved to dismiss the Complaint for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). D.E. 5, 8, 10, 13, 14, 23. Plaintiff opposed each motion, D.E. 9, 12, 18, 20, 21, 26, and Defendants replied, D.E. 16, 19, 22, 24, 25, 27.

II. STANDARD OF REVIEW

Rule 12(b)(1)

In deciding a Federal Rule of Civil Procedure 32(b)(1) motion for lack of subject-matter jurisdiction, a court must first determine whether the party presents a facial or factual attack because the distinction determines how the pleading is reviewed.⁶ A facial attack "contests the sufficiency of the complaint because of a defect on its face," whereas a factual attack "asserts that the factual underpinnings of the basis for jurisdiction fails to comport with the jurisdictional prerequisites." Elbeco Inc. v. Nat'l Ret. Fund, 128 F. Supp. 3d 849, 854 (E.D. Pa. 2015) (quoting Moore v. Angie's List, Inc., 118 F. Supp. 3d 802, 806 (E.D. PA. 2015)). When a party moves to dismiss prior to answering the complaint, as is the case here, the motion is generally considered a facia! attack. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014).

For a facial attack, "the Court must consider the allegations of the complaint as true," much like a Rule 12(b)(6) motion to dismiss. Bd. of Trs. of Trucking Emps of N. Jersey Welfare Fund, Inc. v. Caliber Auto Transfer, Inc., No. 09-6447, 2010 WL 2521091, at *8 (D.N.J. June 11, 2010) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006)). The burden is on the Plaintiff to prove the Court has jurisdiction. Id. (citing Petruska, 462 F.3d at 302).

Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss when a complaint fails "to state a claim upon which relief can be granted[.]" For a complaint to survive dismissalunder Rule 12(b)(6), it must contain enough factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible "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. Further, a plaintiff must "allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims." Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, "must accept all of the complaint's well-pleaded facts as true." Fowler, 578 F.3d at 210. Because Plaintiff is proceeding pro se, the Court construes the pleadings liberally and holds them to a less stringent standard than those filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). "The Court need not, however, credit a pro se plaintiff's 'bald assertions' or 'legal conclusions.'" D'Agostino v. CECOM RDEC, No....