Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martino v. Everhome Mortgage

December 21, 2009

CARLOS AND CAROL MARTINO, INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED, PLAINTIFFS,
v.
EVERHOME MORTGAGE, 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. Martino v. Everhome Mortgage, et al., 639 F. Supp.2d 484, 486 (D.N.J. 2009). Plaintiffs have now filed their Motion to Amend, which Defendant Everhome Mortgage ("Everhome") 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.

The proposed Amended Complaint's factual allegations are nothing more than a recitation of various dates and monetary figures, apparently without any attempt to construct a coherent story as to the dealings between Plaintiffs and Defendant Everhome.*fn3 The Court simply cannot determine the relevance of many of the factual allegations.

In attempting, once again, to piece together the complained-of conduct*fn4 , paragraph 66 of the proposed Amended Complaint appears to be the place to start. It avers, "[t]he Plaintiffs were overcharged at least $21,771.80 ($64,232.46 - $42,460.66)." The proposed Amended Complaint alleges Plaintiffs made the following payments, which add up to $64,232.46:

* $31,044.63 to Everhome on January 25, 2005, which was the "total amount to pay loan in full." (proposed Amended Complaint ("P.A.C.")

*fn5 Ex. H, see also P.A.C. Ex. K, ¶¶ 65, 61, 56-58)

* 28 monthly payments of $513.44 (totaling $14,376.32) "from September 1, 2001 until at least December 1, 2003 . . . to be applied to the principal and interest due on the judgment and loan." (P.A.C. ¶ 63, see also P.A.C. ¶ 65)*fn6

* "Everhome received payments via the Chapter 13 Trustee under case number 01-17893 from August 1, 2001 until September 16, 2004 of $15,384.19" (P.A.C. ¶ 64, see also P.A.C. ¶ 65)

* $3,427.32 to Cooper Levenson April Niedelman & Wagenheim, P.A., Everhome's attorneys, on January 25, 2005 (P.A.C. ¶ 61 and Ex. K, see also P.A.C. ¶ 65)

According to Plaintiffs, they should have only paid the total amount of the foreclosure judgment, plus sheriff fees and commission (i.e., the figure listed in the Gloucester County Sheriff's Office "Statement of Sale."). (P.A.C. ¶ 62 and Exs. J, L) Because those figures add up to significantly less than what Plaintiffs actually paid, the Amended Complaint concludes that Plaintiffs were overcharged approximately $20,000.*fn7

II.

Fed. R. Civ. P. 15(a)(2) states that "[t]he court should freely give leave [to amend a pleading] when justice so requires." "In the absence of . . . undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.