Bordoni v. Chase Home Fin. LLC

374 F.Supp.3d 378

Michael J. BORDONI, Plaintiff,

v.CHASE HOME FINANCE LLC, Defendant.

CIVIL ACTION NO. 18-3937

United States District Court, E.D. Pennsylvania.

Signed April 10, 2019

Richard A. Weisbord, Weisbord and Weisbord, P.C., Philadelphia, PA, for Plaintiff.

Fred W. Hoensch, Scott W. Parker, Jonathan Marc Etkowicz, Parker Ibrahim & Berg LLP, Philadelphia, PA, for Defendant.

MEMORANDUM

GERALD J. PAPPERT, J.

After his wife Bernadette died intestate in 2010, Michael Bordoni became the sole owner of the couple's home at 1110 Moore Street in Philadelphia. For years following his wife's passing, Michael made his monthly mortgage payments. Eventually, after becoming frustrated with his inability to receive information and an explanation from Chase Home Finance regarding the terms of his indebtedness, Michael sued Chase in 2018 and asserted six claims under: the Real Estate Settlement Procedures Act (RESPA); the Truth-In-Lending Act (TILA); the Declaratory Judgment Act; the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) and Pennsylvania state law for an accounting and restitution, breach of contract and unjust enrichment. Chase filed a Motion to Dismiss Michael's Complaint for failure to state a claim. The Court grants in part and denies in part Chase's Motion for the reasons that follow.

I

On November 30, 2004, the Bordonis purchased the property at 1110 Moore Street as tenants by the entireties.

( Compl. ¶ 5 & Ex. A., ECF No. 1.) Michael did not qualify for a mortgage, but Chase approved Bernadette's application. (Id. at ¶ 8.) Bernadette subsequently signed a Truth-In-Lending Disclosure Statement which provided the annual percentage rate, finance charge, amount financed and total payments for the loan. (Id. at ¶¶ 7–9.) Although Michael alleges he never received a TILA packet, (id. at ¶ 14), he signed the mortgage and the Adjustable Rate Rider bears his initials, (id. at ¶ 13 & Ex. D). Michael asserts that Chase sent monthly statements to and communicated with Bernadette only. (Id. at ¶ 16.)

The mortgage fell into arrears on January 1, 2008. (Id. at ¶ 17.) Chase initiated a foreclosure action seven months later in the Philadelphia County Court of Common Pleas. (Id. ) That December, Chase offered Bernadette a Forbearance Plan Agreement, which she accepted. (Id. at ¶ 19.) "As a precondition for qualifying for the loan," Bernadette made a down payment of $ 9,000 and then tendered six monthly average payments of $ 1,292 from February through July of 2009. (Id. ) Bernadette's payments pursuant to the Forbearance Plan Agreement did not bring the loan current. See (id. at ¶ 21). On July 2, 2009, Chase informed Bernadette that her adjustable interest rate was 6.5%, her monthly principal and interest payment was reduced to $ 1,612.64 and the outstanding balance on the mortgage was $ 240,714.78. See (id. at ¶ 21). The following month, Chase told Bernadette that in order to qualify for a Loan Modification, she had to enter into a trial program that required her to make payments from August through December of 2009. (Id. at Ex. I.) On January 2, 2010, Chase advised Bernadette that her adjustable interest rate was 5.75%, her monthly principal and interest payment was reduced to $ 1,502.54 and the outstanding balance on the mortgage was $ 238,036.91. See (id. at ¶ 23). A few weeks later, on January 18, Chase approved Bernadette for the Loan Modification, which allowed her to avoid foreclosure. (Id. at ¶ 24.) Now, Bernadette's fixed interest rate was 7.5%, her monthly payments were $ 2,138.36 and the term of the loan was an additional forty years. (Id. at ¶ 25.)

Bernadette died intestate on June 16, 2010. See (id. at ¶ 27 & Ex. B). Since Chase purportedly had not included Michael in its communications regarding the Loan Modification, Michael "sought an explanation" from Chase on how Bernadette's payments had been applied to the mortgage's overall balance. See (id. at ¶ 28–31). Michael alleges that he tried to speak with Chase but it "would speak only with an executor of [Bernadette's] estate." (Id. at ¶¶ 32–33.) Michael was afraid "to defend another mortgage foreclosure action" so he "continued to make timely monthly payments on the mortgage." (Id. at ¶ 36.)

Because "Bernadette died without assets of her own [and Michael] did not wish to go [through] the unnecessary expense of raising an estate," Michael did not take out letters of administration on Bernadette's estate until July 23, 2018. (Id. at ¶ 34 & Ex. M.) On August 21, 2018, Chase provided Michael with the mortgage documents, which Michael alleges contain his fraudulently added signature. (Id. at ¶ 43.) Michael subsequently filed his Complaint on September 12, 2018. (Compl., ECF No. 1.) Chase now moves to Dismiss the Complaint for failure to state a claim. ( Mot. Dismiss, ECF No. 9.)¹

II

To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when the facts pled "allow[ ] the court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ " Id. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2) ).

Twombly and Iqbal require the Court to take three steps to determine whether a complaint will survive a motion to dismiss. See Connelly v. Lane Const. Corp. , 809 F.3d 780, 787 (3d Cir. 2016). First, it must "take note of the elements the plaintiff must plead to state a claim." Id. (quoting Iqbal , 556 U.S. at 675, 129 S.Ct. 1937 ). Next, it must identify the allegations that are no more than legal conclusions and thus "not entitled to the assumption of truth." Id. (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). Finally, where the complaint includes well-pleaded factual allegations, the Court "should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

This "presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face." Schuchardt v. President of the U.S. , 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). "Conclusory assertions of fact and legal conclusions are not entitled to the same presumption." Id. This plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (quoting Connelly , 809 F.3d at 786–87 ).

III

RESPA's principal purpose is "to protect home buyers from material nondisclosures in settlement statements and abusive practices in the settlement process," both in the actual settlement process and in the "servicing" of a federally related mortgage loan. Jones v. Select Portfolio Servicing, Inc. , 2008 WL 1820935, at *9 (E.D. Pa. Apr. 22, 2008). Michael argues that Chase violated 12 U.S.C. Section § 2605(e) of RESPA by refusing "to respond to [his] reasonable requests" for information regarding his mortgage payments. (Compl. ¶¶ 54–55.) Chase contends that RESPA's statute of limitations bars his claim.² Section 2614 of RESPA provides that an action under § 2605 must be brought within three years "from the date of the occurrence of the violation." 12 U.S.C. § 2614. The Third Circuit interprets "from the date of the occurrence of the violation" as the date the loan closed. In re Cmty. Bank of N. Va. , 622 F.3d 275, 281 (3d Cir. 2010), as amended (Oct. 20, 2010). Here, the loan closed on November 30, 2004, requiring Michael to assert a claim under RESPA on or before November 30, 2007. (Compl. ¶ 5.) Further, Michael does not even respond to Chase's argument and "[f]ailure to address even part of a motion in a responsive brief may result in that aspect of the motion being treated as unopposed." Bridges v. Astrue , No. 12-CV-02316, 2014 WL 1281158, at *14 (E.D. Pa. Mar. 28, 2014) (quoting Nelson v. DeVry, Inc. , No. CIV.A. 07-4436, 2009 WL 1213640, at *10 (E.D. Pa. Apr. 23, 2009) ).

TILA requires lenders to make certain disclosures to borrowers and provides for a civil cause of action against creditors who violate these disclosure provisions. See 15 U.S.C. § 1638. Michael concedes that his TILA claim is barred by the one-year statute of limitations under 15 U.S.C. § 1640(e). See (Resp. Opp'n at 3, ECF No. 10 ) ("Plaintiff agrees that his TILA claim may be dismissed based solely on the statute of limitations.").

IV

Michael relies upon his RESPA and TILA claims as the jurisdictional basis for his declaratory judgment claim. (Compl. ¶ 59.) Chase argues that this claim is duplicative of Michael's RESPA and TILA claims and "fails to set forth an independent cause of action or independent request for relief." (Resp. Opp'n at 15.) The Declaratory Judgment Act provides that a court "may declare the rights ... of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). In Algrant v. Evergreen Valley Nurseries Ltd. Partnership , the Third Circuit held:

[W]hen plaintiffs' claims are barred by a statute of limitations applicable to a concurrent legal remedy, then a court will withhold declaratory judgment relief in an independent suit essentially predicated upon the same cause of action. Otherwise, the statute of limitations can be circumvented merely by "[d]raping their claim in the raiment of the Declaratory Judgment Act."

126 F.3d 178, 184–85 (3d Cir. 1997). As Michael's underlying RESPA and TILA claims are barred by ...