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Perkins v. Washington Mutual

September 4, 2009


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


This case is substantially similar to three cases 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.), Martino v. Everhome Mortgage, et al. , ___ F.Supp.2d ___, 2009 WL 2365160 (D.N.J. July 31, 2009) (Irenas, S.D.J.), and Skypala v. Mortgage Electronic Registration Systems, Inc. et al. , ___ F.Supp.2d ___, 2009 WL 2762247 (D.N.J. Sep. 1, 2009) (Irenas, S.D.J.) Plaintiffs (and putative class representatives) Michael and Stacy Perkins, like the plaintiffs in the above-cited cases, assert that the defendants charged and collected "various fees not authorized by the [mortgage] loan documents or applicable law" and "overcharg[ed] defaulting borrowers of residential mortgages[.]" (Amend. Compl. ¶ 31) As the Court remarked in Martino , "[t]he similarity of issues and timing of these cases is no accident." 2009 WL 2365160 at *1. The same attorney filed Rivera , Martino , Skypala , and the instant case, and the vast majority of the allegations in each case are identical. Thus, the Court is once again presented with an Amended Complaint that is "hopelessly muddled, mistated, and mangled." Rivera , 2009 WL 2001175 at *1. It is particularly remarkable that the instant Amended Complaint is so deficient, given that one of Plaintiffs' current attorneys also represented them in the underlying foreclosure proceedings. (See Amend. Compl. Ex. C) But, 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 recitation of the facts that follows is comprised of the sparse factual "background" as alleged in the Amended Complaint, along with information the Court has gleaned from the attachments to the Amended Complaint and the public documents Defendants have relied upon in their motions to dismiss.*fn2

Plaintiffs executed the mortgage and note at issue in 1999. (Amend. Compl. ¶ 15) Island Mortgage Network, Inc., a non-party to this suit, originated the loan. (Id.)

On or about September 30, 2003, Defendant Shapiro & Diaz ("Shapiro") filed a foreclosure action against Plaintiffs on behalf of Defendants Aurora Loan Services ("Aurora"), Washington Mutual Bank ("WaMu"), and Wells Fargo Home Mortgage ("Wells Fargo").*fn3 (Amend. Compl. ¶ 16) On June 14, 2005, the Honorable Neil H. Shuster of the Superior Court of New Jersey, Chancery Division, entered a final judgment of foreclosure against Plaintiffs and in favor of WaMu.*fn4 (Amend. Compl. Ex. B) The foreclosure judgment was in the amount of $107,845.95, "together with costs . . . to be taxed, including a counsel fee of $1893.30[.]" (Id.)

On October 11, 2005, Plaintiffs filed for Chapter 13 bankruptcy protection in the United States Bankruptcy Court for the District of New Jersey. (Halper Cert. Ex. C; see Amend. Compl. ¶ 18) Thereafter, Plaintiffs made an unspecified number of payments pursuant to the Chapter 13 plan. (Amend. Compl. ¶ 23)

On November 2, 2005, WaMu filed a proof of claim with the bankruptcy court in the amount of $120,974.68.*fn5 (Amend. Compl. Ex. A) The itemized breakdown of that $120,974.68 sum included line items for "Principal Balance" and "Pre-petition Attorney Fees and Costs," in the amounts of $94,425.76 and $4,131.70, respectively. (Id.) On December 11, 2006, the Honorable Gloria M. Burns dismissed Plaintiffs' Chapter 13 bankruptcy proceeding for reasons including their failure to make all required pre-confirmation payments. (Halper Cert. Ex. B)

After the bankruptcy stay was vacated, the Gloucester County Sheriff's Office scheduled a sale of Plaintiffs' property. (Amend. Compl. Ex. D) After several adjournments, that sale was set to occur on February 28, 2007. (Id.) The Sheriff's Office prepared a Statement of Sale in preparation for selling Plaintiffs' property. (Id.) According to that Statement of Sale, the "Total Judgment" due was $124,231.77, including a line item for "Costs Taxed" in the amount of $1,893.30. (Id.)

In response to an inquiry from Plaintiffs, Shapiro prepared a letter dated February 8, 2007, indicating that a payment of $130,890.45 was necessary to pay off Plaintiffs' mortgage.*fn6 (Amend. Compl. Ex. C) That sum was inclusive of "attorney fees and costs[.]" (Id.) The letter was sent to Plaintiffs, with a copy also sent to their attorney, Lewis Adler. (Id.)

On February 21, 2007, Plaintiffs sold the property at issue to an unspecified purchaser for an unspecified amount. (Amend. Compl. ¶ 25) On February 26, 2007, the Sheriff's sale of the foreclosed property was cancelled at WaMu's request, because "a settlement [was] reached in full for $124,291.65."*fn7 (Amend. Compl. Ex. D)

The Amended Complaint asserts the following claims against WaMu, Wells Fargo, and Aurora: (1) breach of contract; (2) negligent servicing of the loan; (3) breach of the duty of good faith and fair dealing; (4) unjust enrichment; (5) "unfair and deceptive assessment and collection of fees"; (6) violation of the Fair Foreclosure Act, N.J.S.A. 2A:50-57(b)(3); (7) violation of New Jersey Court Rules 4:42-9(a)(4) and 4:42-10(a); (8) violation of New Jersey's Consumer Fraud Act, N.J.S.A. 56:8-2 et seq. ; and (9) violation of New Jersey's Truth in Consumer Contracts, Warranty and Notice Act, N.J.S.A. 56:12-14. Shapiro is a Defendant to claims 2 through 4 only.

Plaintiffs propose a statewide class and a nationwide class substantially identical to those proposed in Rivera . See Rivera , 2009 WL 2001175 at *4-*5.

All Defendants presently move to dismiss the Amended Complaint in its entirety. For the reasons that follow, their motions will be granted.


Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2). While a court must accept as true all allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips , 515 F.3d at 234. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).


As done in Rivera, Martino, and Skypala, the Court begins with the wrongful conduct alleged in the Complaint:

At all times relevant hereto, AURORA, WAMU and Shapiro have engaged in a uniform scheme and course of conduct to inflate their profits by charging and collecting various fees not authorized by the loan documents or applicable law. The components of this scheme involve common tactics in which the Defendants have been overcharging defaulting ...

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