Perino v. Fed. Nat'l Mortg. Ass'n for Fannie Mae Remic Trust 2006-90

• Decision Date: 11 August 2015
• Docket Number: Case No. 2:15-cv-01063 (SDW) (SCM)
• Parties: LUCIA PERINO, Plaintiff, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION as trustee for FANNIE MAE REMIC TRUST 2006-90; BANK OF AMERICA, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEM; and Does 1 THROUGH 10, INCLUSIVE, Defendants.
• Court: U.S. District Court — District of New Jersey

LUCIA PERINO, Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION as trustee for FANNIE
MAE REMIC TRUST 2006-90;
BANK OF AMERICA, N.A.; MORTGAGE
ELECTRONIC REGISTRATION SYSTEM;
and Does 1 THROUGH 10, INCLUSIVE, Defendants.

Case No. 2:15-cv-01063 (SDW) (SCM)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

August 11, 2015

NOT FOR PUBLICATION

OPINION

WIGENTON, District Judge.

Before this Court is a Motion to Dismiss filed by Bank of America, N.A. ("BANA"), Federal National Mortgage Association as Trustee for Fannie Mae REMIC Trust 2006-90 ("Fannie Mae"), and Mortgage Electronic Registration Systems, Inc. ("MERS") (collectively, "Defendants"). Defendants seek to dismiss pro se plaintiff Lucia Perino's ("Plaintiff") Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

Jurisdiction in this Court is proper pursuant to 28 U.S.C. § 1332. Venue in this District is proper pursuant to 28 U.S.C. § 1391(b). This decision is issued without oral argument pursuant to Federal Rule of Civil Procedure 78.

For the reasons set forth below, this Court GRANTS Defendants' Motion to Dismiss.

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BACKGROUND

On July 25, 2006, Plaintiff executed a Note to Countrywide Home Loans, Inc. ("Countrywide" or "Lender") and a Mortgage (together with the Note, the "Loan") naming MERS as mortgagee in its capacity as nominee for Countrywide¹ for the property at 239 Johnson Avenue #6, Hackensack, New Jersey 07601 (the "Property"). (Compl. ¶¶ 1, 29-30; Defs.' Mot. to Dismiss Exs. A and B.) Countrywide endorsed the Note in blank. (Defs.' Mot. to Dismiss, Ex. A.) Then, on August 6, 2010, MERS sold the Mortgage to BAC Home Loans Servicing, L.P. F/K/A Countrywide Home Loans Servicing, L.P. (herein referred to as "BANA"²). (Defs.' Mot. to Dismiss Ex. C.)

Plaintiff alleges that Defendants are not holders in due course of the Note. (Compl. ¶ 39.) Further, Plaintiff alleges that Defendants are not beneficiaries under the Mortgage and that Defendants had no right to declare a default on the Loan and no right to foreclose on the Property. (Id.)

On October 28, 2010, BANA filed a foreclosure complaint against Perino, MERS as Nominee for Countrywide Home Loans, Inc., and Grand Manor Condominium Association. (Defs.' Mot. to Dismiss, 2.) On July 28, 2014, the Superior Court of New Jersey, Chancery Division, Bergen County, No. F-051265-10, entered a final judgment against the state defendants and in favor of BANA, foreclosing on the Property. (Defs.' Mot. to Dismiss Ex. D.) In state court, Perino did not file an answer to, or contest, the foreclosure complaint. (Defs.' Mot. to Dismiss, 2.)

On February 9, 2015, Plaintiff filed the instant Complaint in this Court. (Dkt. No. 1.) The

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Complaint includes the following thirteen causes of action: declaratory relief (Count I); injunctive relief (Count II); quiet title (Count III); negligence per se (Count IV); accounting (Count V); breach of the covenant of good faith and fair dealing (Count VI); breach of fiduciary duty (Count VII); wrongful foreclosure (Count VIII); violation of the Real Estate Settlement Procedures Act ("RESPA") (Count IX); violation of the Home Ownership Equity Protection Act ("HOEPA") (Count X); fraud in the concealment (Count XI); intentional infliction of emotional distress (Count XII); and slander of title (Count XIII). (Compl. ¶¶ 127-247.) On March 9, 2015, Defendants filed a Motion to Dismiss Plaintiff's Complaint. (Dkt. No. 5.) On April 10, 2015, Plaintiff filed a Response in Opposition to Defendants' Motion to Dismiss. (Dkt. No. 8.) On April 15, 2015, Defendants filed a letter regarding pro se Plaintiff's untimely Opposition.³ (Dkt. No. 9.)

LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2), governing the adequacy of pleadings, requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). This Rule "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 "'requires a showing, rather than a blanket assertion, of entitlement to relief'" (quoting Twombly, 550 U.S. at 555 n. 3) (internal quotation marks omitted)).

A court considering a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), 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

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may be entitled to relief.'" Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. 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). If the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint should be dismissed for failing to show "'that the pleader is entitled to relief." Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

In Fowler v. UPMC Shadyside, the Third Circuit directed district courts to conduct a two-part analysis of complaints. 578 F.3d 203, 210-11 (3d Cir. 2009). First, the court must separate the factual elements from the legal conclusions, accepting well-pled facts as true and disregarding legal conclusions. Id. Second, the court must determine if "the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting...