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Rivera v. Countrywide Home Loans

December 3, 2009

DAVID AND MARIANNE RIVERA, INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED, PLAINTIFFS,
v.
COUNTRYWIDE HOME LOANS, DEFENDANT.



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

HONORABLE JOSEPH E. IRENAS

OPINION

In a prior opinion and order, this Court dismissed without prejudice Plaintiffs' "hopelessly muddled, misstated, and mangled Amended Complaint," with leave to file a Motion to Amend the Complaint. Rivera v. Washington Mutual Bank, et al., 637 F. Supp.2d 256, 258 (D.N.J. 2009). Plaintiffs have now filed their Motion to Amend, which Defendant Countrywide Home Loans ("Countrywide") opposes.*fn1 Familiarity with this Court's prior opinion is presumed. For the reasons set forth herein, the Motion will be denied and the case will be dismissed with prejudice.*fn2

I.

Plaintiffs' proposed Second Amended Complaint is still not a model of clarity.*fn3 However, one ambiguity has been remedied. As explained in the previous opinion, the Amended Complaint did not identify what payments Plaintiffs alleged were illegal:

While the Amended Complaint seems to suggest that Plaintiffs seek repayment of "sums" they paid on Washington Mutual's proof of claim filed in the second bankruptcy case, such an allegation cannot possibly be true. The proof of claim was clearly limited to Plaintiffs' pre-petition arrears. Payment of the amount claimed by Washington Mutual in the proof of claim would not result in the mortgage and lis pendens being discharged because Plaintiffs were behind in their post-petition mortgage payments as well.

The "sums" to which the Amended Complaint refers more likely means a payoff amount that Plaintiffs paid Countrywide to refinance their mortgage. However, the Court has no way of determining what any payoff statement said, how much Plaintiffs paid, or whether any of the fees generated over the years in the bankruptcy process were included in a payoff amount.

Rivera, 637 F. Supp.2d at 265. The proposed Second Amended Complaint alleges, in relevant part,

50. An order was entered [by the bankruptcy court on] July 17, 2007 allowing Plaintiffs to obtain credit to refinance their mortgage.

51. The Defendant added the accumulated foreclosure fees of $1550.00, foreclosure costs of $1898.44, 'Bankruptcy fees' of $1025.00 and 'Bankruptcy costs' of $225.00 to the Plaintiffs' account for payment as they were accrued.

52. The Defendant demanded payment of the accumulated foreclosure fees of $1550.00, foreclosure costs of $1898.44, 'Bankruptcy fees' of $1025.00 and 'Bankruptcy costs' of $225.00 in its payoff demand to Plaintiffs on or about July 2007.*fn4

53. The Plaintiffs paid the sums demanded by Countrywide in full on or about July 2007 upon the refinance of their mortgage with a new lender inclusive of all the accumulated foreclosure fees of $1550.00, foreclosure costs of $1898.44, 'Bankruptcy fees' of $1025.00 and 'Bankruptcy costs' of $225.00.

54. The total sums paid inclusive of foreclosure fees, foreclosure costs, bankruptcy fees and bankruptcy costs by the Plaintiff [sic] were $4698.44 which was $2517.02 in excess of the amounts allowed in the foreclosure judgment.

55. The Defendant then dismissed the foreclosure action with prejudice and discharged the mortgage and Lis ...


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