Scalercio-Isenberg v. Credit Suisse Grp.
| Decision Date | 28 February 2023 |
| Docket Number | Civ. 22-2705 (KM) (AME) |
| Parties | SHERRY SCALERCIO-ISENBERG, Plaintiff, v. CREDIT SUISSE GROUP, SELECT PORTFOLIO SERVICING, INC. SPS, MITCHELL SCOTT KURTZ, and ROBERT D. BAILEY, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Now before the Court are the following motions: the motion of Plaintiff Sherry Scalercio-Isenberg (DE 18)[1] for default judgment as to Defendant Select Portfolio Servicing, Inc. (“SPS”); the motion of plaintiff (DE 25) for default judgment as to Defendant Credit Suisse Group; the motion of SPS (DE 27) to dismiss the complaint under Rule 4(m); and the motion of Defendants Mitchell Scott Kurtz and Robert D. Bailey (DE 21) to dismiss the complaint under Rule 12(b)(1) and Rule 12(b)(6). For the reasons set forth below the motions of plaintiff for entry of default judgment (DE 18; DE 25) are DENIED; the motion of SPS (DE 27) is DENIED, without prejudice; and the motion of Kurtz and Bailey (DE 21) is GRANTED. All claims against Kurtz and Bailey are dismissed, without prejudice, for failure to state a claim under Rule 12(b)(6).
Plaintiff, appearing pro se, brings this lawsuit against Defendants in connection with her residential mortgage. Plaintiff asserts that she has made timely mortgage payments, but Defendants have diverted her payments to an “unapplied” account and failed to apply those payments towards her mortgage balance.[2] (Compl. pp. 9, 18-19.) Defendants, she alleges, then falsely reported these to credit reporting agencies as late payments. (Id. p. 9.)
Plaintiff also asserts that Defendants opened an unauthorized escrow account under her name in relation to her mortgage and sent her mortgage statements reflecting an outstanding balance increase of over $100,000. (Id. p. 12, 14-15.) Plaintiff asserts that she has disputed the false information “directly to the Creditor MTGLQ Investors LP/Goldman Sachs and the Mortgage Servicer, Select Portfolio Servicing,” but Defendants have failed to correct the information. (Id. p. 15.) She also states that Defendants “block[ed] her ability to access over $400,000.00 of equity savings.” (Id. p. 5.)
Plaintiff asserts that Kurtz and Bailey filed a false police report “to obtain access to search her home as a harassment tactic.” (Id. p. 17.) Specifically, they “deceived the New Jersey District Court and a Sussex County Judge, and also the New Jersey Sparta Township Police department, by filing a false Police report against the Plaintiff, in order to obtain a Search & Seize Order from a Judge and gain access to the Plaintiff's home inside and outside to intimidate and harass her[.]” (Id. p. 3.) Plaintiff asserts that Kurtz and Bailey altered an email from her to obtain the search warrant. (Id. p. 4.)
On April 19, 2022, plaintiff filed a complaint alleging the following causes of action: violation of the Real Estate Settlement Practices Act, 12 U.S.C. § 2605 (Count One); violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 (e), (b), (i) (Count Two) and 15 U.S.C. § 1681 (e), (b) (Count Four); violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (Count Three) and 15 U.S.C. § 1692g (Count Five); violation of New York General Business Law § 349(a) (Count Six); violation of New York Judiciary Law § 487 (unidentified count); and mortgage servicing fraud (unidentified court).
On August 1, 2022, plaintiff filed a motion for default judgment against Credit Suisse Group. In her motion, plaintiff asserts that “Credit Suisse Group was properly served a Summons and Complaint by the Process Server, Undisputed Legal, on May 19, 2022 at the corporate office located at 11 Madison [A]venue New York, NY 10110, for which the General Counsel, Ms. Pam Fleming, provided details and agreed to accept service on behalf of Credit Suisse.” (DE 25 p. 2.) However, according to plaintiff, “Credit Suisse Group has failed to respond to the Summons & Complaint.” Id.
Credit Suisse Group opposes the motion for default judgment.[3] (DE 30.) Attached to their opposition is a declaration by Ms. Fleming explaining that she is not General Counsel for Credit Suisse Group, or even an employee of Credit Suisse Group.[4] (DE 30-1 ¶¶ 2, 4.) Rather, Ms. Fleming is a secondee in the legal department of another company, Credit Suisse Securities (USA) LLC (“CS Securities USA”), which is not named as a defendant in this action.[5] (Id. ¶ 2.)
Ms. Fleming states that she did not accept service on behalf of Credit Suisse Group and, to her knowledge, neither did anyone else. (Id. ¶¶ 9, 10, 12.)
Where there is a question as to the validity of service, the burden of proof of service lies on “the party asserting the validity of service.” Grand Entmt. Grp. v. Star Media Sales, 988 F.2d 476, 488 (3d Cir. 1993). “This burden can be met by a preponderance of the evidence using affidavits, depositions, and oral testimony.” Mills v. Ethicon, Inc., 406 F.Supp.3d 363, 392 (D.N.J. 2019) (quoting State Farm Mut. v. Tz'Doko V'Chesed, 543 F.Supp.2d 424, 428 (E.D. Pa. 2008)). “In the absence of service of process . . . a court ordinarily may not exercise power over a party the complaint names as defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).
Plaintiff has not met her burden. Plaintiff's assertion that Credit Suisse Group was served with the complaint and summons is unsupported by the record. There is no affidavit of service filed on the docket or attached to plaintiff's moving papers. See Isaac v. Sigman, No. 16-cv-5345, 2017 WL 2267264, at *4 (). Even if plaintiff intended to serve CS Securities USA, that company is not named as a defendant in this action and plaintiff does not provide any evidence to support that they were served.
Therefore, plaintiff's motion for default judgment against Credit Suisse Group is denied.
Plaintiff filed a motion for default judgment against SPS on June 28, 2022. (DE 18.) In her motion, plaintiff asserts that a summons was issued by the U.S. District Court for the Southern District of New York on April 27, 2022, prior to the transfer of the case to this district. (DE 20 p. 2.) Then, according to plaintiff, SPS was served on April 29, 2022, with a copy of the summons and complaint, as shown by the affidavit of service filed on the docket. (DE 17.)
SPS opposed the default judgment motion in a letter to the Court on July 5, 2022 (DE 19) and, on August 19, 2022, SPS filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 4(m) (DE 27-1).[6] SPS asserts that it was never served with a summons and that the terms of Judge Swain's transfer order stated that no summons would issue from that court. (Id. p. 2 (referring to DE 5).)
Under Rule 4(m), a plaintiff must serve the summons and complaint on a defendant within 90 days after the filing of the complaint. Fed.R.Civ.P. 4(m); see Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (). If a plaintiff does not serve the summons and complaint within the allotted time, Rule 4(m) provides that “the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m); see Powell v. Symons, 680 F.3d 301, 310 n.8 (3d Cir. 2012).
As stated in Section II.A., supra, when there is a question as to the validity of service, the burden of proof of service lies on “the party asserting the validity of service.” Grand Entmt. Grp., 988 F.2d at 488. “This burden can be met by a preponderance of the evidence using affidavits, depositions, and oral testimony.” Mills, 406 F.Supp.3d at 392 (quoting State Farm Mut., 543 F.Supp.2d at 428.
Plaintiff has not met her burden. Plaintiff's assertion that a summons was issued by the Southern District of New York on April 27, 2022, is unsupported by the record. On May 2, 2022, Judge Swain ordered that this case be transferred from the Southern District of New York to this district and stated: “A summons shall not issue from this Court.” (DE 5.) Accordingly, no summons from the Southern District of New York appears on the docket. Despite no summons having been issued, plaintiff filed an affidavit of service stating that SPS was served with a copy of the complaint and summons on April 29, 2022. No summons is attached to the affidavit, however. (DE 17.) The first summons issued as to any defendant, including SPS, and the only summons appearing on the docket, issued from this district, i.e., the U.S. District Court for the District of New Jersey, on May 12, 2022. (DE 10.) Therefore, there is no evidence to support that a valid summons was served on SPS on April 29, 2022. Additionally, plaintiff does not claim to have served SPS with a copy of the May 12th summons.
For those reasons, plaintiff's motion for default judgment against SPS is denied. SPS not having been served, its motion to dismiss (DE 27-1) is administrative terminated without prejudice, subject to renewal or refiling as may become appropriate.
...
To continue reading
Request your trial