Pagano v. Ventures Trust 2013-I-Hr
| Decision Date | 22 January 2016 |
| Docket Number | CIVIL ACTION NO. 3:15-CV-01489 |
| Parties | LORRAINE PAGANO, Plaintiff, v. VENTURES TRUST 2013-I-HR, et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
(CAPUTO, J.)
(MEHALCHICK, M.J.)
REPORT AND RECOMMENDATION
This is a pro se action for declaratory relief, injunctive relief, and damages asserting a violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601-2617, as well as several state law claims against Defendants Ventures Trust 2013-I-H-R ("Ventures Trust"), BSI Financial Services ("BSI"), Bank of America, N.A. ("BANA"), Mortgage Electronic Registration Services, Inc. ("MERS"), and John or Jane Does 1 through 10. (Doc. 1). All named Defendants have entered an appearance in this matter and filed motions to dismiss Plaintiff Lorraine Pagano's complaint. (Doc. 20 (Ventures Trust and BSI); Doc. 22 (BANA and MERS)). For the following reasons, it is recommended that the motions be granted.
Pagano initially filed her fee-paid complaint in this matter with the United States District Court for the Eastern District of Pennsylvania on June 4, 2015. (Doc. 1). The case was transferred to this Court from the Eastern District on July 31, 2015.1 (Doc. 18; Doc. 19). Defendants Ventures Trust and BSI filed a new motion to dismiss on August 11, 2015 (Doc. 20), followed by a brief in support thereof on August 17, 2015 (Doc. 24). Defendants BANA and MERS filed a motion to dismiss (Doc. 22) and supporting brief (Doc. 23) of their own on August 13, 2015. To date, Plaintiff has not filed a response to either of these motions. Because Plaintiff failed to timely file a brief in opposition to Defendants' motions to dismiss, she is deemed not to oppose the motions. See L.R. 7.6 (). Given that the time period for Plaintiff to file a brief in opposition has passed (Doc. 25), the motions are now ripe for disposition.2
This litigation concerns a home loan made by Countrywide Home Loans, Inc. ("Countrywide") to Plaintiff in September of 2005 involving real property located at 6431 Laurel Road in Pocono Summit, Pennsylvania (the "Laurel Road Property").3 (Doc. 1, at ¶¶ 4, 28-29). In return, Plaintiff executed a promissory note (the "Note") in the amount of $204,000.00 and secured by a mortgage (the "Mortgage"), promising to repay the loan. (Doc. 1, at ¶¶ 28-29). The Mortgage was recorded with the Monroe County Recorder ofDeeds on September 27, 2005, and identified MERS as the nominee for Countrywide. (Doc. 1, at ¶¶ 30-31). Countrywide now ceases to exist, having been purchased by BANA. (Doc. 1, at ¶ 28).
On March 25, 2014, MERS assigned the Mortgage to BANA and an assignment of mortgage was recorded with the Monroe County Recorder of Deeds. (Doc. 1, at ¶ 82). Plaintiff alleges that Mercedes Judilla signed the assignment instrument in her capacity as assistant secretary for MERS without disclosing her employment with BANA. (Doc. 1, at ¶ 83). In part because of this, Plaintiff claims that the assignment was a fraudulent attempt by BANA to conceal ownership of the Note. (Doc. 1, at ¶¶ 86-92). BANA subsequently assigned the Mortgage and Note to OHA Newbury Ventures, LP, as recorded on October 22, 2014. (Doc. 1, at ¶¶ 93-94). Plaintiff contends that this assignment was also fraudulent. (Doc. 1, at ¶ 100). The most recent assignment of the Mortgage, to Ventures Trust, was recorded on April 16, 2015. (Doc. 7, at 16). Plaintiff acknowledges that Ventures Trust held both the Note and the Mortgage at the time she filed her complaint, and that BSI is the servicer of Plaintiff's loan. (Doc. 1, at ¶¶ 8, 34).
On June 5, 2014, BANA initiated a mortgage foreclosure action in the Court of Common Pleas of Monroe County, alleging that Plaintiff had been in default on her Mortgage payments since November 1, 2013.4 (Doc. 1, at ¶ 55; Doc. 20-2, at 7-12). Plaintifffailed to enter an appearance in the foreclosure proceeding, and the prothonotary entered a default judgment against her on July 22, 2014. (Doc. 1, at ¶ 162; Doc. 20-2, at 29-30, 35-37, 41-42). A writ of execution was issued on the Laurel Road Property on August 18, 2014 (Doc. 20-2, at 30), and a sheriff's sale was scheduled to take place on or about July 30, 2015 (Doc. 1, at ¶ 44).
Plaintiff now asks this Court to void the entry of default judgment in the Court of Common Pleas, declare that BANA lacked standing to bring the foreclosure action (Count I), and enter an order to quiet title enjoining Defendants from asserting any lien or interest that interferes with Plaintiff's enjoyment of the Laurel Road Property (Count II). (Doc. 1, at ¶¶ 162, 176, 184). Plaintiff also asserts federal RESPA claims against BANA and BSI for accepting unearned fees (Count V), 12 U.S.C. §§ 2601-2617. (Doc. 1, at ¶¶ 197-201). Furthermore, Plaintiff asserts state law claims against all named Defendants for breach of the implied covenant of good faith and fair dealing (Count IV), fraud (Count VI), and breach of contract (Count VII). (Doc. 1, at ¶¶ 191-196, 202-216). Lastly, Plaintiff brings a negligence claim against BANA and BSI (Count III), and a slander of title claim solely against BANA (Count VIII). (Doc. 1, at ¶¶ 185-190, 217-223).
A motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Gould Elecs. Inc. v. United States, 220 F. 3d 169, 176 (3d Cir. 2000). A defendant asserts a facial challenge"by arguing that the complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction." D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d 484, 491 (D.N.J. 2008). The Court therefore "must consider the allegations of the complaint as true" in evaluating a facial challenge to subject matter jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In a factual attack under Rule 12(b)(1), however, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549 F.2d at 891. Moreover, in evaluating a factual challenge, a court may consider "evidence outside the pleadings to determine if it has jurisdiction." Gould Elecs. Inc., 220 F.3d at 178. "Rule 12(b)(1) motions may be filed at any time and repeatedly, if the movants assert new arguments warranting [the court's] attention." Fahnsestock v. Reeder, 223 F. Supp. 2d 618, 621 (E.D. Pa. 2002). Furthermore, "[w]hen a motion under Rule 12 is based on more than one ground, the court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot." In re Corestates Trust Fee Litig., 837 F. Supp. 104, 105 (E.D. Pa. 1993), aff'd 39 F.3d 61 (3d Cir. 1994).
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). "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the fact allegations in thecomplaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). 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 Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court of the United States held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. 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., 551 U.S. 308, 322 (2007).
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 her claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Defendants assert that this Court must dismiss Plaintiff's complaint in its entirety for lack of subject matter jurisdiction pursuant to the Rooker-Feldmen doctrine. (Doc. 23, at 3-5; Doc. 24, at 6-10); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Parkview Assocs. Partnership v. City of Lebanon, 225 F.3d 321,...
To continue reading
Request your trial