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Rickenbach v. Wells Fargo Bank

March 8, 2010

EDWARD RICKENBACH, JACK MCTAGUE AS EXECUTOR OF THE ESTATE OF JAMES MCTAGUE, AND HATTIE MCTAGUE BY AND THROUGH HER ATTORNEY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
WELLS FARGO BANK, N.A., ET AL., DEFENDANTS.



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

OPINION

This matter is before the Court on a motion for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P., brought by the defendants Wells Fargo, N.A. ("Wells") and Mortgage Electronic Registration Systems, Inc. ("MERS"), (collectively, "Defendants") [Docket Item 38]. Defendants' motion follows on the heals of this Court's June 22, 2009 Opinion and Order which granted in part and denied in part Defendants' motion to dismiss pursuant to Rule 12(b)(6). Rickenbach v. Wells Fargo Bank, N.A., 635 F. Supp. 2d 389 (D.N.J. 2009). In that same opinion, the Court dismissed all claims against Attorney Defendants Zucker, Goldberg, and Ackerman, finding that Plaintiffs' claims, which arise out of payoff statements that included allegedly excessive and illegal mortgage processing fees, were barred by New Jersey's litigation privilege. For the reasons explained below, and consistent with "the law of the case" doctrine, the Court will grant Defendants' motion for judgment on the pleadings as to claims brought by Plaintiffs McTague, but deny Defendants' motion as to Plaintiff Rickenbach's remaining breach of contract claim.

I. BACKGROUND

A. Factual Allegations

The Court has already set forth the relevant factual allegations at length, Rickenbach, 635 F. Supp. 2d at 392-93, but will nevertheless restate the relevant facts as necessary to assist the reader.

1. Plaintiff Edward Rickenbach

Plaintiff Edward Rickenbach ("Plaintiff Rickenbach") executed the mortgage and note at issue in this case under seal on June 26, 1996. (Am. Compl. ¶ 15.) On November 11, 2001, Defendant Zucker filed a foreclosure proceeding on behalf of Defendant Wells against Plaintiff Rickenbach. (Id. ¶ 16.) In response, Plaintiff Rickenbach sought and received reinstatement of his mortgage, which occurred on or about December 26, 2001. (Id. ¶¶ 17-18.) The foreclosure action and lis pendens were dismissed. (Id. ¶ 19.) Plaintiff Rickenbach then requested a statement of the amount needed to satisfy his mortgage along with any fees ("payoff statement"), so that he could refinance his home with a new mortgage company. (Id. ¶ 20.) According to the Amended Complaint, "on or about May 30, 2002," Plaintiff Rickenbach paid his remaining mortgage in full. (Id. ¶ 21.) The check for that payment is dated April 9, 2002. (Dzura Certification, Ex. 2.)

According to Plaintiffs, the reinstatement and ultimate satisfaction of Plaintiff Rickenbach's mortgage "were improperly calculated as [] Defendant Wells included charges which were in excess of the amounts allowed either pursuant to the terms of the note and mortgage or New Jersey law." (Id. ¶ 22.) Specifically, Plaintiff Rickenbach alleges that the fee charged to him included attorneys fees and costs for an entire foreclosure proceeding, despite the termination of foreclosure proceedings. (Id. ¶ 33(a).)

2. Plaintiffs McTague

On June 6, 1976, Plaintiff Hattie McTague and her late husband James McTague, whose estate is now represented by Jack McTague, (collectively, "Plaintiffs McTague") executed their mortgage and note under seal. (Id. ¶ 23.) On or about March, 2005, Defendant Zucker filed a foreclosure proceeding on behalf of Defendants MERS and Wells, the servicer of the loan for Defendant MERS, against Plaintiffs McTague. (Id. ¶¶ 25-26.) After receiving the foreclosure complaint, counsel for Plaintiffs McTague requested a payoff statement for the mortgage. (Id. ¶ 27.) According to the Amended Complaint, Defendant Zucker, on behalf of Defendants MERS and Wells, provided Plaintiffs McTague with a statement dated June 7, 2007 in the amount of $7,061.28, of which $910.00 was for attorney fees and $1,009.00 was for costs. (Id. ¶¶ 28, 30.) The June 7, 2007 date appears to be incorrect, however, because attached to the Amended Complaint is the actual payoff letter from Defendant Zucker, and it is dated March 11, 2005.*fn1 (Am. Compl. Ex. A.) That letter explains "the amounts required to reinstate and payoff our client's mortgage and for dismissal of the foreclosure action." (Id.) Defendant Wells participated in the preparation of that statement. (Am. Compl. ¶ 29.) On or about April 21, 2005, Plaintiffs McTague paid the sums demanded in full and Defendants dismissed the foreclosure action and discharged the mortgage. (Id. ¶ 31-32.) Plaintiffs McTague allege that under New Jersey Court Rules, Defendants could charge no more than $177.13 for attorney fees. (Id. ¶ 33(a).)

B. Procedural History

On May 30, 2008, Plaintiffs brought this putative class action against Defendant Wells. On August 15, 2008, Plaintiffs filed their Amended Complaint against Defendant Wells, along with Defendants MERS and Zucker. The Amended Complaint set forth the following claims: breach of contract against Defendant Wells (Count I); negligence against all Defendants (Count II); breach of duty of good faith and fair dealing against all Defendants (Count III); unjust enrichment against all Defendants (Court IV); unfair and deceptive assessment and collection of fees against Defendants Wells and MERS (Count V); violations of the Fair Foreclosure Act against Defendants Wells and MERS (Count VI); violations of the New Jersey State Court Rules against Defendants Wells and MERS (Count VII); violations of the New Jersey Consumer Fraud Act ("CFA") against Defendants Wells and MERS (Count VIII); and violations of the New Jersey Truth-In-Consumer Contract, Warranty, and Notice Act ("TCCWNA") against Defendants Wells and MERS (Count IX). Plaintiffs also named various John Doe parties to the action (Count X).*fn2

All defendants filed motions motions to dismiss and on June 22, 2009, the Court granted Defendant Zucker's motion and granted in part and denied in part the motion of Defendants Wells and MERS. Rickenbach, 635 F. Supp. 2d at 394-404. As a result of that opinion, Plaintiff Rickenbach's contract claim against Defendants Wells and MERS survived dismissal, while the Court permitted Plaintiffs McTague to pursue their claims for breach of contract, negligence, breach of an implied duty of good faith and fair dealing, and violations of the New Jersey Consumer Fraud Act and the New Jersey ...


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