Nobile v. U.S. Bank Nat'Lass'N

• Decision Date: 05 January 2016
• Docket Number: CIVIL ACTION NO. 1:15-CV-01102
• Parties: SALVADOR M. NOBILE, Plaintiff, v. U.S. BANK NATIONAL ASSOCIATION, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

SALVADOR M. NOBILE, Plaintiff, v. U.S. BANK NATIONAL ASSOCIATION, et al., Defendants.

CIVIL ACTION NO. 1:15-CV-01102

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

January 5, 2016

(RAMBO, J.)

(MEHALCHICK, M.J.)

REPORT AND RECOMMENDATION

Plaintiff Salvador M. Nobile, proceeding pro se, brings this action asserting violations of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (the "FDCPA"), federal civil rights law, and Pennsylvania state law. (Doc. 1). Named as Defendants are U.S. Bank National Association as Trustee for Structured Assets Investment Loan Trust Mortgage Pass Through Certifications, Series 2006-3 ("U.S. Bank"), Phelan Hallinan, LLP, and Joseph P. Schalk, Esquire, of Phelan Hallinan, LLP.¹ Pending before this Court are Defendants' motions to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 7; Doc. 10). For the reasons provided herein, it is respectfully recommended that Defendants' motions to dismiss be granted (Doc. 7; Doc. 10), but that Plaintiff be permitted an opportunity to file an amended complaint.

I. BACKGROUND AND PROCEDURAL HISTORY

This complaint was filed by pro se Plaintiff Salvador M. Nobile on June 5, 2015. While it is difficult to discern the nature of the allegations, it appears that the complaint concerns alleged violations of the FDCPA, Plaintiff's federal constitutional rights and Pennsylvania state law, arising from the commencement and prosecution of a mortgage foreclosure proceeding filed in the Court of Common Pleas of York County and eventual sheriff's sale by Defendants U.S. Bank, Joseph P. Schalk, Esquire, and Phelan Hallinan, LLP, against debtors James Nicholls and Jean Nicholls, nonparties to this action. Plaintiff, a junior lienholder, challenges Defendant U.S. Bank's standing to foreclose on property owned by the Nicholls.² Plaintiff contests the validity of the mortgage assigned to U.S. Bank via the Mortgage Electronics Registration System, a national clearinghouse that tracks ownership interests in, and servicing rights to, mortgage loans. Specifically, he claims that he obtained a first priority lien over the Nicholls's property by virtue of his perfecting an interest in the property prior to U.S. Bank acquiring the mortgage by means of assignment. Furthermore, Plaintiff appears to suggest that Defendants not only failed to produce the original note in the state foreclosure action, rendering the foreclosure judgment invalid, but also failed to properly record the assignment in violation of 21 Pa. Stat. § 351, among other Pennsylvania statutes.

Defendant U.S. Bank filed a motion to dismiss the complaint on June 26, 2015. (Doc. 7). A brief in support of that motion was filed on July 13, 2015. (Doc. 11). Defendants PhelanHallinan, LLP, and Joseph P. Schalk, Esquire, filed a separate motion to dismiss on June 26, 2015. (Doc. 10). A brief in support of their motion to dismiss was filed on July 13, 2015. (Doc. 12). Plaintiff filed briefs in opposition to Defendants' motions to dismiss on August 11, 2015 (Doc. 13), and August 12, 2015 (Doc. 14), respectively. Defendant U.S. Bank filed a reply brief on August 25, 2015. (Doc. 15). Having been fully briefed, this matter is ripe for disposition.

II. STANDARD OF REVIEW³

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). A court "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). When ruling on a motion to dismiss, a trial court must assess whether a complaint states facts upon which relief can be granted, and should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

In deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551U.S. 308, 322 (2007).⁴ Additionally, a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

III. DISCUSSION

A. FEDERAL CIVIL RIGHTS CLAIMS AGAINST DEFENDANTS

As an initial matter, Defendant U.S. Bank seeks dismissal of Plaintiff's complaint on the basis that the pleading relies on mere labels and conclusions, and fails to provide any factual allegations supporting Plaintiff's claimed entitlement to relief. (Doc. 11, at 14).

The Court agrees that Plaintiff has failed to state any cognizable civil rights violationagainst the stated three Defendants, as Plaintiff merely provides a list of constitutional amendments that were allegedly violated by Defendants without relating each violation with predicate factual allegations. For example, Plaintiff asserts violations of the First, Fifth, Seventh, and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983.

Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.

Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To state a § 1983 claim, a plaintiff must demonstrate that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). The "under color of state law" element of § 1983 excludes from its reach "merely private conduct, no matter how discriminatory or wrongful." Blum v. Yaretsky, 457 U.S. 991, 1002 (1982).

Here, the complaint is completely devoid of any facts demonstrating that Plaintiff was deprived of a right secured by the Constitution. More importantly, it is beyond cavil that Defendants are private entities or individuals, not arms of the state. See, e.g., Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) (attorney not a state actor merely based on role as an officer of the court); Bailey v. Harleysville Nat'l Bank & Trust, 188 F. App'x 66, 68 (3dCir. 2006) ("[T]he Bank is not a state actor by virtue of its regulation by the government and participation in the federal reserve system and Federal Deposit Insurance Corporation") (citing Apao v. Bank of N.Y., 324 F.3d 1091, 1095 (9th Cir. 2003) (holding that a bank using non-judicial foreclosure procedure provided by state law was not a state actor for § 1983 purposes)).

Under limited circumstances, a private individual may be liable under § 1983 if his or her conduct is so closely related to governmental conduct that it can be fairly viewed as conduct of the state itself. See Mark, 51 F.3d at 1142-43 (detailing the various tests used to analyze whether private conduct may be treated as state action). However, none of the conduct alleged by the...