Rojecki v. Bank of Am., N.A.
| Decision Date | 28 June 2016 |
| Docket Number | Civil Action No. 15-8160 (ES) |
| Parties | EDYTA ROJECKI, Plaintiff, v. BANK OF AMERICA, N.A., et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Before the Court is Defendant Bank of America, N.A.'s ("BANA" or "Defendant") motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). ( ) at 5). The two other Defendants—Stern, Lavinthal & Frankenberg, LLC ("Stern Lavinthal") and Assunta Cacciatore—join BANA's motion to dismiss and submit those arguments in support of their dismissal from this action. (D.E. No. 7). Plaintiff Edyta Rojecki ("Rojecki" or "Plaintiff") opposes Defendants' motion. (D.E. No. 8 ("Pl. Opp. Br.")). None of the Defendants submitted a reply in support of their motion to dismiss.
The Court decides this matter without oral argument. See Fed. R. Civ. P. 78(b). For the reasons below, the motion to dismiss is DENIED-in-part and RESERVED-in-part.
From 2005 onwards, Rojecki lived in a certain property in Elmwood Park, New Jersey. . But "Rojecki was unable to make her monthly mortgage payments and defaulted on her mortgage on or about March 1, 2012." (Id. ¶ 9). BANAsubsequently offered Rojecki a "loan modification," which "provided for three trial payments." (Id. ¶ 10). "To accept the loan modification offer[,] Rojecki needed to either make the first trial payment or sign and return the offer before September 20, 2012." (Id.).
Rojecki did not do so, however, because "the amounts asked for were beyond her ability to pay and were not based upon a sufficient review of her application." (Id. ¶ 11). Given "Rojecki's refusal to accept the terms of the trial modification," BANA denied the loan modification. .
"After the denial, Rojecki submitted a full loan modification package for review by [BANA]." (Id. ¶ 13). "Rojecki was subsequently denied a home loan modification, again based upon the modification package submitted." (Id. ¶ 14). In August 2013, Rojecki requested reconsideration of this denial. (Id. ¶ 15). And, in March 2014, Rojecki submitted "a request for a loan modification, including a Uniform Borrower Assistance Form," to BANA. (Id. ¶¶ 15-16). In early November 2014, Rojecki had bank statements faxed to BANA in support of her March 2014 loan modification request "at the request of [BANA] for additional information." (Id. ¶ 17). Later in November 2014, "Rojecki again provided updated documents to [BANA]"—including another Uniform Borrower Assistance Form—"at the request of [BANA] for additional information." (Id. ¶ 18).
On or about January 17, 2015, however, Rojecki was informed that her property was scheduled for a sale on February 27, 2015. (See id. ¶ 19). Up to this point, BANA had "never rejected or denied [her] requests in any form," but instead was "continuing to review her situation." (See id. ¶ 21). And, "[e]ven with the pending sale, Rojecki continued to try to modify her home loan," and, on or about February 12, 2015, she provided BANA additional documentation "at the request of [BANA] for additional information." (Id. ¶ 22).
But, on or about February 13, 2015, Stern Lavinthal—a law firm "representing banks, lending institutions and real estate entities concerning litigating foreclosure cases on their behalf throughout New Jersey"—notified Rojecki "that her family's home was scheduled to be sold on February 27, 2015." (Id. ¶¶ 6, 23).
Nevertheless, on or about February 24 and 25, 2015, Rojecki provided more documentation to BANA "upon [BANA's] request." (Id. ¶ 24). And, on or about February 25, 2015, Stern Lavinthal notified Rojecki "that the scheduled sale has been postponed until [M]arch 27, 2015." (Id. ¶ 25). On or about February 26, 2015, Rojecki provided additional documentation to BANA "at the request of [BANA] for additional information," (id. ¶ 26), and on or about March 19, 2015, Rojecki provided—"for the third time"—a Uniform Borrower Assistance Form to BANA, (id. ¶ 27).
On or about April 3, 2015, however, BANA denied Rojecki's loan modification request. (Id. ¶ 28). Although this denial notification indicated that Rojecki's loan "was previously modified" and that she was limited to only certain modifications over certain time periods, Rojecki had never received a modification in the delineated time periods. (Id. ¶¶ 28-29).
Nevertheless, on or about May 14, 2015, BANA informed Rojecki that she could re-apply for a loan modification and so she "went about gathering her documents and prepared to submit yet another package to [BANA] for review." (Id. ¶ 31). "At this point neither [BANA] nor [Stern Lavinthal] had notified Rojecki of any pending new sale date for the property." (Id. ¶ 32).
So, on or about May 18, 2015, Rojecki re-applied "for a loan modification by sending in a complete package for review," and, on May 20, 2015 and May 28, 2015, BANA requested additional documentation—which Rojecki provided—concerning her loan modification request.(See id. ¶¶ 33-35). On or about May 28, 2015, however, Stern Lavinthal informed Rojecki that the sale of her property was scheduled for June 5, 2015. (Id. ¶ 36). Still, Rojecki continued to provide documents requested by BANA and, on or about June 2, 2015, she provided a fourth Uniform Borrower Assistance Form to BANA. (Id. ¶ 37).
On June 5, 2015, BANA sold Rojecki's home. (Id. ¶ 38). Yet, on or about June 16, 2015, BANA sent her a letter "indicating that it was still in the process of reviewing her loan for a loan modification." (Id. ¶ 39). And BANA subsequently "requested yet more documentation for their supposed continuing review of Rojecki's loan for a modification even though the property had been sold twelve days prior." (Id. ¶ 40).
Rojecki asserts the following seven causes of action: (1) violations of the Real Estate Settlement Procedures Act ("RESPA"); (2) violations of the New Jersey Consumer Fraud Act ("NJCFA"); (3) negligent misrepresentation; (4) negligent processing of loan modifications; (5) negligence; (6) unjust enrichment; and (7) intentional fraud. (See id. ¶¶ 43-88). Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants move to dismiss all seven claims. (See D.E. Nos. 4 & 7).
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."Id. Determining whether there is "a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
"When reviewing a motion to dismiss, '[a]ll allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom.'" Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). But the court is not required to accept as true "legal conclusions," and "[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.
So, the inquiry is "normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus, 641 F.3d at 563.
Finally, "[i]n deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of the public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) .
In her Complaint, Rojecki asserts violations under RESPA. In particular, she alleges that the alleged in the Complaint violate RESPA, including that:
(Compl. ¶ 44).
BANA argues that Rojecki "fails to state a cognizable claim for relief because her own Complaint acknowledges that the loan modification package submitted in May 2015 was incomplete." (Def. Mov. Br. at 10). It asserts that her "own Complaint makes it irrefutably clear that she did not provide a complete loan modification package to BANA more than thirty-seven (37) days before the scheduled sale" and, even if ...
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