Scripnicencu v. LSF9 Master Participation Tr., CIVIL ACTION No. 19-5280

LINDA BONNIE SCRIPNICENCU, Plaintiff, v. LSF9 MASTER PARTICIPATION TRUST, et al. Defendants.

CIVIL ACTION No. 19-5280

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

August 18, 2020

McHUGH, J.

MEMORANDUM

This case is one of a series of similar actions filed by the same attorney alleging a variety of claims following mortgage actions in state court. As with the other cases, the claims here are pleaded in vague terms against multiple defendants with little regard for the Rules and little grasp of the controlling principles of law. The complaint here is now on its third iteration, with no material improvement in form or substance. Having carefully considered the parties' submissions, Defendants' Motion to Dismiss will be granted, with leave to amend denied.

I. Relevant Background

A. The Pleaded Facts¹

In early 2005, Plaintiff Linda Bonnie Scripnicencu and her husband, George, obtained a mortgage on their home. (Br. in Supp. of Defs.' Mot. to Dismiss. Ex. C., at 8, ECF 19-6.) As istypical in the industry, the mortgage was assigned multiple times. Initially, Mr. Scripnicencu executed and delivered the mortgage to Mortgage Electronic Registration System, Inc. ("MERS"), acting as nominee for a different company. (Id.) In February 2010, MERS assigned the mortgage to SunTrust Mortgage, Inc. (Id. at 9.) Thereafter, SunTrust assigned the mortgage to Federal National Mortgage Association ("FNMA"). FNMA chose Seterus, Inc. to act as its authorized loan servicer.²

Plaintiff alleges that sometime prior to November 1, 2013, she and her husband tried unsuccessfully to obtain assistance from SunTrust regarding their mortgage payments. (Second Amended Complaint ("SAC") ¶¶ 1-4.) Then, in late-2013 or early-2014, the Scripnicencus received communication from the loan servicer, Seterus, indicating that their mortgage payment of $1,900 per month was $1,000 lower than it should have been. (SAC ¶¶ 15-16.) Nevertheless, Seterus sent the Scripnicencus a letter via FedEx, stating that it would accept a payment of $1,600 per month, or $300 less than the amount they were already being undercharged. (SAC ¶ 19.) Shortly thereafter, George Scripnicencu passed away. (SAC ¶ 20.)

Seterus made multiple attempts to contact Plaintiff by phone, including on the morning her husband passed away. (SAC ¶¶ 21-25.) Once Seterus was able to speak with Plaintiff, the company inquired whether she intended to stay in her home. (SAC ¶ 24.) Based on Seterus's initial communication about the discrepancy in mortgage payments, Plaintiff harbored strong enough misgivings about the company's ability to service her mortgage that she retained theservices of attorney Robert Birch in May 2014. (SAC ¶¶ 29-31.) Birch instructed her not to make any payments until he secured a payment arrangement with Seterus. (SAC ¶ 35.) Birch also advised Plaintiff to obtain County records to show that she was a signer on the mortgage, which she did. (SAC ¶¶ 32-33.)

On June 25, 2014, Plaintiff's lender, FNMA, filed a mortgage foreclosure action in the Bucks County Court of Common Pleas. (ECF 19-6, at 9.) Once the action was filed, Plaintiff avers that she sought weekly updates from Birch on the progress of the case, and he informed her that he had nothing to report because the case was moving slowly. (SAC ¶¶ 36-37.) For more than two years, Plaintiff made no payments on the mortgage as the foreclosure action wended its way through the court system. (SAC ¶¶ 35-38.) Then, in April 2016, FNMA moved for summary judgment on its claims in the amount of $244,522.38, and a response was filed on Plaintiff's behalf just over a month later. (ECF 19-6, at 9.) The Court of Common Pleas entered summary judgment in favor of FNMA on August 18, 2016, (Id.), which Plaintiff avers she learned of by letter a short time later, (SAC ¶ 38.)

Understandably upset, Plaintiff contacted Birch to inquire about the judgment entered against her, and Birch told her that he did not receive the court's order—likely because he had relocated his office around the same time. (SAC ¶¶ 40-41.) When pressed about how and why Birch had failed to keep judgment from being entered against her, Birch allegedly told Plaintiff that he had made no guarantees about the outcome of her case, and it was her fault that the judgment was entered because she failed to pay the mortgage for more than two years. (SAC ¶¶ 42-44, 49.) Plaintiff also avers she conducted research online about the foreclosure action and discovered that Birch made "several errors in the case." (SAC ¶ 45.)

Plaintiff appealed the trial court's decision to the Superior Court of Pennsylvania but failed to file necessary components with the trial court first, the practical result being the Superior Court remanded the case to the trial court to reach the merits of the appeal and file a supplemental opinion.³ (ECF 19-6, at 11.) On June 16, 2017, the Court of Common Pleas issued its supplemental opinion, which weighed each of Plaintiff's allegations of error, found them without merit, and concluded that summary judgment had been properly granted in favor of FNMA. (Id. at 17.) The Superior Court affirmed the trial court's judgment on August 8, 2017. (Id. at 7.)

After the judgment was affirmed, Plaintiff alleges that she filed for bankruptcy to avoid a Sheriff's sale of her home and secured a mortgage modification with the help of her current counsel, Joshua Thomas. (SAC ¶¶ 52-53.) Under the new agreement, the term of the mortgage was extended until April 2058, the principal amount increased from $205,348.45 to $270,729.44, and Plaintiff's monthly payment was set at $1,543.63 per month—slightly less than the amount she paid before entering default. (SAC ¶¶ 54-56; Loan Modification Agreement, Br. in Supp. of Defs.' Mot. to Dismiss Ex. E, at 3, ECF 19-8.)

Based upon the new agreement, Plaintiff secured dismissal and vacatur of the trial court judgment. (SAC ¶¶ 60-61.) Later, however, Plaintiff alleges Defendant Caliber advised her of a $29,000 deficit in escrow funds and other arrearages on the account, and, as a result, herpayments increased to as high as $1,875.89 per month from October 2019 to January 2020, finally settling at approximately $1,606.00 per month. (SAC ¶¶ 68-75.) Plaintiff alleges that on November 1, 2019, Shellpoint Mortgage Servicing became the loan servicer, but Caliber continued to accept her payments. (SAC ¶ 76.)

B. Relevant Procedural History

Plaintiff has been granted multiple accommodations by this Court. Plaintiff filed her initial complaint in this Court on November 8, 2019. (ECF 1.) Because Plaintiff secured a waiver of service filed on March 17, 2020, the moving Defendants' response to the initial complaint was due by May 18, 2020. (ECF 4.) The moving Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on April 16, 2020. (ECF 5.) Two weeks later, Plaintiff sought an extension of time to respond to the motion to dismiss, (ECF 9), which the Court granted on May 1, 2020, (ECF 10.)

Plaintiff filed an amended complaint on May 7, 2020, (ECF 11), prompting the Court to deny the first motion to dismiss as moot on May 8, 2020, (ECF 12.) Ten days later, the moving Defendants filed a second motion to dismiss. (ECF 13.) Two weeks after the response to the motion was due, Plaintiff requested a second extension of time to respond to the pending motion. (ECF 14.) The Court granted Plaintiff's request the same day. (ECF 15.) Plaintiff filed the Second Amended Complaint on June 22, 2020. (ECF 16.) On June 30, 2020, the Court denied the moving Defendants' pending motion to dismiss and Plaintiff's request for extension of time as moot. (ECF 18.) In response to the Second Amended Complaint, on July 6, 2020, Defendants filed the Motion to Dismiss now before the Court. (ECF 19.) Plaintiff opposed the Motion in a filing dated July 20, 2020, (ECF 20), to which Defendants filed a reply on August 3, 2020, (ECF 21.)

Accordingly, the matter has now been fully briefed and is ripe for a decision.

II. Standard of Review

In this Circuit, motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) are governed by the well-established standard set forth in Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

III. Discussion

The jumbled nature of the Second Amended Complaint makes it difficult to determine the substance of Plaintiff's allegations. To the extent I can decipher them, the allegations seem to hinge on a series of misrepresentations and deceptive conduct in which Defendants are purported to have engaged. But the Complaint suffers from two major defects: it fails throughout to distinguish between the moving Defendants when alleging misconduct, and, when closely analyzed, it fails to state a claim against any of them. I will address each count of the Second Amended Complaint applicable to the moving Defendants in turn.

A. Plaintiff fails to allege a violation of Pennsylvania consumer protection law.

In Count One of the Second Amended Complaint, Plaintiff alleges that Defendants violated the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"). She claims that "[t]he actions of the Defendants, individually and/or jointly, were performed in direct contradiction to their promises of superior services and conduct, but instead for their own financial self-interests, in detriment to the rights and position of the Plaintiff." (SAC Count One ¶ 8.)⁴ Plaintiff further asserts Defendants' purported conduct is actionable under the "catchall" provision of the statute, and she seems to allege that Defendants' actions were deceptive, not fraudulent.

Defendants respond that Plaintiff points to no deceptive acts giving rise to liability and that she further fails to plead justifiable reliance on any of the Defendants' actions. I agree.

The UTPCPL prohibits "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." 73 Pa. Stat. Ann. § 201-3. To bring a claim...