Slimm v. Bank of Am. Corp.

• Decision Date: 02 May 2013
• Docket Number: Civil No. 12-5846 (NLH/JS)
• Parties: JASON SLIMM, BRANDI N. SLIMM, AND ROBERT H. OBRINGER, Plaintiffs, v. BANK OF AMERICA CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

JASON SLIMM, BRANDI N. SLIMM, AND ROBERT H. OBRINGER, Plaintiffs, v. BANK OF AMERICA CORPORATION, et al., Defendants.

Civil No. 12-5846 (NLH/JS)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: May 2, 2013

OPINION

APPEARANCES:

JASON D. SLIMM

BRANDI D. SLIMM

Pro Se Plaintiffs,

ROBERT H. OBRINGER

Pro Se Plaintiff,

AARON M. BENDER, ESQUIRE

TIMOTHY P. OFAK, ESQUIRE

REED SMITH, LLP

PRINCETON FORRESTAL VILLAGE

Attorneys for Defendants Bank of America Corporation, Bank

of America, N.A., BAC Home Loans Servicing, LP, ReconTrust

Company, and Mortgage Electronic Registration Systems, Inc.

HILLMAN, District Judge:

This matter comes before the Court by way of Defendants Bank of America Corporation, Bank of America, N.A., BAC Home LoansServicing, LP, ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc.'s Motion to Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons expressed below, Defendants' Motion shall be granted in its entirety.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This matter stems from a mortgage foreclosure action. Plaintiffs Jason D. Slimm, Brandi N. Slimm,¹ and Robert H. Obringer² own property in Camden County, New Jersey.³ (Compl. ¶¶ 4-6.) Defendants Bank of America Corporation and Bank of America, N.A. (collectively hereinafter "Bank of America"),⁴ BAC Home Loans Servicing, LP ("BAC"), ReconTrust Company, N.A.("ReconTrust"), Countrywide Financial Corporation ("Countrywide"),⁵ and Mortgage Electronic Registration Systems ("MERS")⁶ are financial institutions or private companies engaged in the business of servicing mortgages. (Id. ¶¶ 7-13.) Defendant BAC Home Loans Servicing, LP ("BAC") is a subsidiary of Bank of America that services defaulted mortgages. (Id. ¶ 9.) Defendant Federal Home Loan Mortgage Corporation ("Freddie Mac") is a government-sponsored enterprise that services mortgages. (Id. ¶ 14.) Defendant Aurora Bank FSB ("Aurora Bank") is a privately-held bank based in Wilmington, Delaware. (Id. ¶ 15.) Defendant CGW Realty is a real estate agency located in Cherry Hill, New Jersey, and Defendant Denise Toft is one of its associates. (Id. ¶¶ 16, 17.) Defendants Aurora, Freddie Mac, CGW Realty, and Toft have not responded to Plaintiffs' Complaint, and are not parties to the instant Motion to Dismiss. Accordingly, the findings made in the instant Memorandum Opinion only apply to Defendants Bank of America, BAC, ReconTrust, and MERS.

On September 28, 2006, Plaintiffs executed a promissory noteevidencing a $187,267.00 mortgage loan at a six percent (6%) interest rate. (Defs.' Mot. Dismiss, Ex. B, Note.)⁷ Pursuant to the terms of the Note, Plaintiffs were required to make a monthly payment of $1,122.76 to Aurora Bank for principal and interest due on the loan. (Id.) The Note was secured by a mortgage, also dated September 28, 2006, which formed a lien on their property.

(Defs.' Mot. Dismiss, Ex. C, Mortgage Instrument.) According to Plaintiffs, shortly after acquisition of the loan, Defendants Bank of America, BAC, and ReconTrust began to service the loan. (Compl. ¶ 12.) It is unclear from the record when each company actually assumed service of the loan. However, the record indicates that BAC transferred service of the loan to its parent company, Bank of America, N.A., on July 1, 2011. (Pl.'s Resp. Opp'n, Obringer Cert., Ex. B).

On March 10, 2010, Defendant Bank of America began to effectuate a foreclosure proceeding on Plaintiffs' property.⁸ (Id. ¶ 31.) On May 21, 2010, the Slimms contacted Bank of America to attempt to work out an arrangement by which they could avoid foreclosure and maintain possession of their home by participating in a loan modification.⁹ (Id. ¶ 36.) According to Plaintiffs, Bank of America agreed to a modification of their loan agreement pursuant to the federal Home Affordable Modification Program in December of 2010. (Id. ¶ 42.)Plaintiffs contend that they agreed to participate in the loan modification program in January of 2011, and thereafter submitted all of the required documentation to Bank of America and were in frequent contact with its representatives, who repeatedly indicated to them that their modification was close to being approved and was "in the final stages." (Id. ¶¶ 45, 49.) On February 3, 2012, however, the Slimms received notification that their loan modification was denied. (Id.) Despite receipt of the denial letter, the Slimms aver that Bank of America continued to communicate with them after this, insisting that their modification was still being arranged and that "one additional document was needed." (Id. at ¶ 50.) Plaintiffs allege that they complied with every request made by Defendants, but that Defendants "intentionally and wrongfully toyed" with them during this process. (Id.)

Plaintiffs filed the instant Complaint before this Court on September 14, 2012, asserting violations of the Fair Debt Collection Practices Act, Fair Credit Reporting Act, New Jersey Consumer Fraud Act, promissory estoppel, Truth in Lending Act, and Racketeer Influenced and Corrupt Organizations Act. On October 31, 2012, Defendants filed the instant Motion to Dismiss Plaintiffs' Complaint in its entirety. Plaintiffs filed a Response in Opposition on November 19, 2012, to which Defendants replied on November 26, 2012. Plaintiffs then filed a sur-reply¹⁰ on November 28, 2012. Accordingly, this matter is now ripe for judicial review.

II. JURISDICTION

The Court has federal question subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.¹¹ Specifically, this matter arises under 15 U.S.C. §§ 1601, 1692, 1681 and 18 U.S.C. § 1961. Accordingly, the Court has jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over Plaintiff's state law claims according to 28 U.S.C. § 1367.

III. STANDARD OF REVIEW

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)(quotation and citation omitted).

A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quotingScheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ."); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("Iqbal . . . provides the final nail-in-the-coffin for the 'no set of facts' standard that applied to federal complaints before Twombly.").

Following the Twombly/Iqbal standard, the Third Circuit has instructed a two-part analysis in reviewing a complaint under Rule 12(b)(6). First, the factual and legal elements of a claim should be separated; a district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Fowler, 578 F.3d at 210 (citing Iqbal, 129 S. Ct. at 1950). Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "'plausible claim for relief.'" Id. (quoting Iqbal, 129 S. Ct. at 1950). A complaint must do more than allege the plaintiff's entitlement to relief. Id.; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element").

A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). The defendant bears the burden of showing that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

Finally, a court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999). A court may consider, however, "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). If any other matters outside the pleadings are presented to the court, and the court does not exclude those matters, a Rule 12(b)(6) motion will be...