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Martino v. Mortgage

July 31, 2009


The opinion of the court was delivered by: Irenas, Senior District Judge



This case is substantially similar to a case the Court recently addressed: Rivera v. Washington Mutual, et al. , ___ F. Supp.2d ___, 2009 WL 2001175 (D.N.J. July 10, 2009) (Irenas, S.D.J.). Plaintiffs (and putative class representatives) Carlos and Carol Martino, like the Riveras, assert that the defendants, a mortgage lender and its law firm, charged and collected "various fees not authorized by the [mortgage] loan documents or applicable law" and "overcharged defaulting borrowers of residential mortgages." (Compl. ¶ 40) The similarity of issues and timing of these cases is no accident. As the Court observed in Rivera , the same attorney filed both cases on the same day, and the vast majority of the allegations in each case are identical. Thus, it is fair to say, as the Court did in Rivera, that the Complaint in this case is "hopelessly muddled, mistated and mangled." 2009 WL 2001175 at *1. But as in Rivera , the Court has made every effort to discern the alleged facts of the case and then rule on the pending Motions to Dismiss as set forth below.*fn1


The Court will first summarize the sparse factual "background" as alleged in the Complaint. Then the Court will attempt to fill the gaping holes in the background factual allegations with the facts it has gleaned from the public documents Defendants have relied upon in their Motions to Dismiss.*fn2

The Complaint's Allegations

Plaintiffs executed the mortgage and note at issue in 1982. (Compl. ¶ 31) Clarion Mortgage Company, a non-party to this suit, originated the loan. (Id.)

On August 26, 1996, Defendant Cooper Perskie Levenson April Niedelman & Wagenheim, P.A.*fn3 ("Cooper") filed a foreclosure action against Plaintiffs on behalf of its client, EverHome Mortgage Company ("EverHome").*fn4 (Compl. ¶ 32) EverHome is the successor in interest to Clarion Mortgage Company. (Id.)

At some unspecified time "after Plaintiffs were served with the foreclosure complaint," Plaintiffs "filed for Chapter 13 Bankruptcy." (Compl. ¶ 33)*fn5

The Complaint next alleges that a final judgment of foreclosure was entered against Plaintiffs on June 26, 2001 (Compl. ¶ 34)-- almost five years after the foreclosure case began, and approximately four years after Plaintiffs' first bankruptcy case began. The Complaint makes no attempt to account for what transpired in the intervening years.

The Complaint next alleges that on December 16, 2004, "Plaintiffs received a payoff from Cooper on behalf of EverHome in the sum of $46,678.27." (Compl. ¶ 35) The Complaint does not account for the three and a half years that passed between the final judgment of foreclosure and the payoff statement.

Plaintiffs "paid the sums demanded in full on or about January 27, 2005." (Compl. ¶ 38)

Additional Facts Gleaned from Bankruptcy Court Documents

Approximately nine months after the foreclosure action was instituted, Plaintiffs filed their first chapter 13 petition. (O'Meara Cert. Ex. A) The case was dismissed on October 9, 1997. (Id. Ex. B) The Court has no further information on this first bankruptcy case.*fn6

On March 11, 1998, Plaintiffs filed their second chapter 13 bankruptcy petition. (O'Meara Cert. Ex. C) In late May, 1999, the bankruptcy court confirmed the chapter 13 plan, which required Plaintiffs to pay 45 monthly payments of $1,420.00 to the bankruptcy trustee and attorney's fees in the amount of $1,100.00. (Id.) It may be inferred from the bankruptcy court docket that Alliance Mortgage Company ("Alliance") (which later changed its name to EverHome Mortgage Company) filed a proof of claim (id.), although that proof of claim is not included in the documents before the Court at this time.*fn7

Approximately ten months after the chapter 13 plan was confirmed, Alliance moved for relief from the automatic stay. (O'Meara Cert. Ex. C) According to the bankruptcy court docket, the motion was resolved through a "consent order curing arrears" (id.), but the actual consent order is not included in the record currently before the Court.

Three months after the consent order was entered, Plaintiffs moved to reinstate the automatic stay. That motion was granted, over Alliance's objection, on October 17, 2000. (O'Meara Cert. Ex. C)

In December of that same year, upon the Trustee's application, the bankruptcy court entered an Ex Parte Order Dismissing the Case. (O'Meara Cert. Ex. C) The case was closed on January 31, 2001. (Id.)

With no more automatic stay in place, Alliance obtained a final judgment of foreclosure by default against Plaintiffs on June 26, 2001. (Compl. Ex. A)

On August 6, 2001, Plaintiffs filed their third chapter 13 petition. While EverHome (still named Alliance at the time) asserts that it filed a proof of claim in this third bankruptcy, the proof of claim they provide the Court was submitted by Union Planters Mortgage. (O'Meara Cert. Ex. E) EverHome does not explain this discrepancy.

Prior to the confirmation of the chapter 13 plan, Plaintiffs moved to reduce the amount of Alliance's secured claim. (O'Meara Cert. Ex. F) The bankruptcy court docket indicates that this motion was "denied." (Id. Ex. D)

Plaintiffs' chapter 13 plan was confirmed on May 8, 2002. (O'Meara Cert. Ex. D) It provided for 52 monthly payments of $1,119, "plus $6,720 paid," and attorneys fees of $1,400.00. (Id.)

On May 28, 2003, Plaintiffs moved to modify Alliance's claims. (O'Meara Cert. Ex. D) In the motion, Plaintiffs asserted, among other things, that Alliance's proof of claim was "erroneous" explaining, "[t]here are legal fees and foreclosure costs of $2,110.90, which [debtors] question as being extremely high, especially since previous proofs of claim have also included legal fees and foreclosure costs." (O'Meara Cert. Ex. F) The docket indicates, however, that the motion was ultimately "denied for lack of prosecution." (Id. Ex. D)

On August 28, 2003, the bankruptcy court confirmed Plaintiffs' modified chapter 13 plan which provided for 36 monthly payments of $930.00 and no attorney's fees. (O'Meara Cert. Ex. D)

On May 21, 2004, the bankruptcy court granted the Trustee's motion to dismiss the case. (O'Meara Cert. Ex. D) The Trustee's final report indicates that prior to the dismissal, Plaintiffs had paid Alliance $15,384.19, which was the entire amount of Alliance's allowed claim. (Id. Ex. I)

The Complaint asserts the following claims against EverHome, all arising out of the alleged unauthorized fees it charged and various other overcharges: (1) breach of contract; (2) intentional misrepresentation; (3) negligent servicing of the loan;*fn8 (4) breach of the duty of good faith and fair dealing; (5) unjust enrichment; (6) "deceptive collection of fees"; (7) violation of the Fair Foreclosure Act, N.J.S.A. 2A:50-57(b)(3); (8) violation of New Jersey Court Rules 4:42-9(a)(4) and 4:42-10(a); (9) violation of New Jersey's Consumer Fraud Act, N.J.S.A. 56:8-2 et seq. ; and (10) violation of New Jersey's Truth In Consumer Contracts, Warranty and Notice Act, N.J.S.A. 56:12-14 et seq. Cooper is a Defendant to claims 3 through 5 only.

Plaintiffs propose a statewide class consisting of:

(1) individuals who have had home loans held or serviced by the Defendant, EVERHOME in the State of New Jersey from sixteen years prior to the filing of the complaint through the date of class certification; and (2) who received a payoff or reinstatement statement from the Defendant whose home loan was in default; (3) and who were charged attorneys fees and/or other costs ...

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