Perez v. Jpmorgan Chase Bank, N.A.

ALEJANDRO VINCENTE PEREZ and CATHLEEN HANENBERG PEREZ, Plaintiffs, v. JPMORGAN CHASE BANK, N.A., et al., Defendants.

Civil Action No.: 14-2279 (CCC)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

February 29, 2016

NOT FOR PUBLICATION

OPINION

CECCHI, District Judge.

I. INTRODUCTION

This matter comes before the Court by way of the motion of defendants JPMorgan Chase Bank, N.A. ("Chase"), Federal National Mortgage Association ("Fannie Mae"),¹ and Fannie Mae-Remic Trust 2008-14 (collectively with Chase and Fannie Mae, "Defendants") to dismiss the Fifth Amended Complaint of plaintiffs Alejandro Vincente Perez and Cathleen Hanenberg Perez ("Plaintiffs") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 18. Plaintiffs oppose the motion. ECF No. 20. No oral argument was heard pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, Defendants' motion to dismiss is granted.

II. BACKGROUND

The following facts are accepted as true for purposes of the instant motion. Plaintiffs are the owners of the subject property located at 236 Mabel Ann Avenue, Franklin Lakes, New Jersey (the "Property"). See Fifth Amended Complaint ("Compl."), ECF No. 16, ¶ 16. On or about January 25, 2008, Plaintiffs executed a note in the amount of $417,000 to Chase (the "Note"). See Certification of Joseph P. Lemkin, ("Lemkin Cert."), Ex. A;² Compl. Ex. 1 at 12. On that same date, Plaintiffs executed a mortgage securing the Note in favor of Chase (the "Mortgage"). See Lemkin Cert. Ex. B; Compl. Ex. 1 at 12. Fannie Mae serves as trustee for the trust that currently owns Plaintiffs' Note and Mortgage. Compl. ¶ 12.

In 2009, Plaintiffs "faced a financial hardship [that] caus[ed] them to fall behind on their Mortgage payments." Compl. ¶ 20. Plaintiffs do not allege, however, that the Mortgage is in default or that Defendants have initiated foreclosure proceedings.

On December 30, 2011, Plaintiffs filed an adversary action (the "adversary proceeding") in the United States Bankruptcy Court for the District of New Jersey against Defendant Chase and Phelan Hallinan & Schmeig, LLP ("Phelan"), a law firm.³ See Lemkin Cert. Ex. C; ECF No. 6. On April 9, 2014, Plaintiffs moved to withdraw the adversary proceeding to this Court. See ECF No. 1. Magistrate Judge Falk granted Plaintiffs' motion on March 17, 2015. ECF No. 6. Subsequently, Plaintiffs filed Third and Fourth Amended Complaints. See ECF Nos. 7, 11. On June 1, 2015, Judge Falk granted Plaintiffs leave to amend their complaint. See ECF No. 15.

On June 5, 2015, Plaintiffs filed a Fifth Amended Complaint,⁴ asserting claims for: Violation of the Truth in Lending Act ("TILA") and the Home Ownership and Equity Protection Act ("HOEPA") (Count I); Violation of the Real Estate Settlement Procedures Act ("RESPA") (Count II); Violation of the Fair Debt Collection Practices Act ("FDCPA") (Count III); Fraudulent Concealment (Count IV); Fraudulent Inducement (Count V); Rescission (Count VI); Slander of Title (Count VII); Quiet Title (Count VIII); Declaratory Judgment (Count DC); and Intentional Infliction of Emotional Distress (Count X). See Compl. ¶¶ 96-228. Plaintiffs seek damages and declaratory relief. Id. ¶¶ 63-68. On July 10, 2015, Defendants moved to dismiss Plaintiffs' Complaint pursuant to Federal Rules of Procedure 12(b)(1) and 12(b)(6). See ECF No. 18.

III. LEGAL STANDARD

A. Dismissal Pursuant to Federal Rule of Procedure 12(b)(1)

A court must grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) if the court determines that it lacks subject-matter jurisdiction over a claim. In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). An attack on subject matter jurisdiction can be either facial—based solely on the allegations in the complaint—or factual—looking beyond the allegations to attack jurisdiction in fact. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where, as here, the challenge to subject matter jurisdiction is facial, the Court must, for the purposes of this motion, take all the allegations in the complaint to be true and construe them in the light most favorable to the Plaintiffs. Johnson v. Novastar Mortgage, Inc., 698 F. Supp. 2d 463, 467 (D.N.J. 2010).

"Article III of the Constitution limits the jurisdiction of federal courts to 'Cases' and 'Controversies.'" Lance v. Coffman, 549 U.S. 437, 439 (2007); Luian v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). One key aspect of this case-or-controversy requirement is standing. See Lance, 549 U.S. at 439. "The standing inquiry focuses on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed." Constitution Party of Pennsylvania, 757 F.3d 347, 360 (3d Cir. 2014) (citing Davis v. FEC, 554 U.S. 724, 734 (2008)).

To establish standing, a plaintiff must satisfy a three-part test, showing: "(1) an 'injury in fact,' i.e., an actual or imminently threatened injury that is 'concrete and particularized' to the plaintiff; (2) causation, i.e., traceability of the injury to the actions of the defendant; and (3) redressability of the injury by a favorable decision by the Court." Nat'l Collegiate Athletic Ass'n v. Gov. of N.J., 730 F.3d 208, 218 (3d. Cir. 2013) (citing Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). "The party invoking federal jurisdiction bears the burden of establishing these elements." Luian, 504 U.S. at 561.

B. Dismissal Pursuant to Federal Rule of Procedure 12(b)(6)

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), it "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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 545 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "A pleading that offers labels and conclusions will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Iqbal, 556 U.S. at 678 (internal citations omitted). 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." Id. Additionally, in evaluating a plaintiff's claims, generally "a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

A court may dismiss a claim with prejudice if amendment would be futile. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). "'Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted." Id. (citing hire Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).

IV. DISCUSSION

Defendants urge this Court to dismiss Plaintiffs' Complaint because Plaintiffs' claims fail for lack of standing or, in the alternative, because their claims are time barred⁵ or otherwise fail to state a claim on which relief can be granted. See PL Br. in Support, ECF No. 18-1, at 6-8. As a preliminary jurisdictional matter, the Court addresses Defendants' contention that Plaintiffs lack standing to bring any of their claims. Courts in the Third Circuit have repeatedly held mortgagors lack standing to contest the assignment of their mortgages or notes or violations of the pooling and servicing agreement ("PSA")⁶ where plaintiffs are not parties to or third-party beneficiaries of the PSA or assignment. See Bauer v. Mortg. Elec. Registration Sys., Inc., 618 Fed. App'x 147, 149 (3d Cir. 2015); Pillitteri, 2015 WL 790633, at *4; Eun Ju Song v. Bank of Am., N.A., No. 2:14-3204, 2015 WL 248436, at *2 (D.N.J. Jan. 20, 2015); Oliver v. Bank of Am., N.A., No. 2:13-4888, 2014 WL 1429605, at *3 (D.N.J. Apr. 14, 2014); Schiano v. MBNA, No. 2:05-1771, 2013 WL 2452681, at *26 (D.N.J. Feb. 11, 2013); Grullon v. Bank of Am., N.A., No. 2:10-5427, 2013 WL 9681040, at *12 (D.N.J. Mar. 28, 2013). Plaintiffs do not claim they are parties to or third-party beneficiaries of the PSA or assignments of their Note or Mortgage. Accordingly, the Court finds Plaintiffs lack standing to bring claims on those bases. Nevertheless, because the Court does not find that Plaintiffs' claims rest solely on those bases, the Court will also analyze each of Plaintiffs' claims pursuant to Federal Rule of Procedure 12(b)(6).

A. Violation of TILA and HOEPA (Count I)

Plaintiffs seek damages for Defendants' alleged failure to provide Plaintiffs with certain unspecified disclosures, in violation of TILA and HOEPA.⁷ Compl. ¶ 98. Claims for damages under TILA and HOEPA "must be brought within one year from the date of the occurrence of the violation." 15 U.S.C. § 1640(e); see also Galayda v. Wachovia Mortgage, FSB, No. CIV.A. 10-1065 FLW, 2010 WL 5392743, at *6 (D.N.J. Dec. 22, 2010). Plaintiffs do not contest that this action was brought beyond the limitations period but instead request equitable tolling of the limitations period "due to [D]efendant[s'] failure to effectively provide [P]laintiff[s] with the indispensable, mandatory,...