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Irene Fiorello v. Wamu (A/K/A) Jp Morgan Chase Home

December 22, 2010

IRENE FIORELLO PLAINTIFF,
v.
WAMU (A/K/A) JP MORGAN CHASE HOME
FINANCE, LPS FIELD SERVICES, ALLSTATE
INSURANCE COMPANY, JOHN DOE AND
JOHN DOE COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Wolfson, United States District Judge:

*NOT FOR PUBLICATION

OPINION

Pro se plaintiff Irene Fiorello ("Plaintiff) filed the instant twenty-nine-count Complaint and Third Party Complaint against Defendants Washington Mutual Bank ("WaMu") and its successor JP Morgan Chase Home Finance ("Chase"); LPS Field Services ("LPS"); and Allstate Insurance Company ("Allstate") (collectively referred to as "Defendants").*fn1 Plaintiff alleges that she obtained a mortgage with WaMu and thereafter, WaMu and LPS illegally broke into the mortgaged property on several occasions after Plaintiff defaulted on the loan. In the Complaint, Plaintiff asserts various causes of action arising out of the alleged "break-ins" against WaMu and LPS. Plaintiff further alleges in the Third Party Complaint that Allstate improperly denied her insurance claim filed as a result of the first break-in. Federal Deposit Insurance Corporation ("FDIC") requests that it be substituted as defendant for WaMu and Chase in its capacity as the receiver of WaMu.*fn2 In the present matters, Defendants move to dismiss Plaintiff's Complaint and Third-Party Complaint. In their respective motions, Allstate contends that the contractual statute of limitations has run on all insurance related claims against Allstate; FDIC asserts that this Court does not have jurisdiction over matters against FDIC as the receiver; and LPS seeks to dismiss all counts of the Complaint, except Counts IV, V, VI, and X, for failure to state a claim. For reasons that follow, the Court grants the motions by FDIC and LPS. With respect to Allstate's motion, the Court converts that motion to a summary judgment motion pursuant to Fed. R. Civ. P. 12(d). Allstate and Plaintiff shall have twenty days from the date of the Order accompanying this Opinion to supplement the record.

I. Factual and Procedural History

For the purposes of these motions, the Court will regard Plaintiff's allegations in the Complaint as true.*fn3 Plaintiff is the owner of a residential home located at 617 Ninth Avenue, Manchester, NJ (the "Property"). Complaint, First Count, ¶ 1. The Property was purchased by securing a mortgage loan with WaMu on May 10, 2006. Id., ¶ 2. Plaintiff also obtained a home equity loan from WaMu for the same property. Id., ¶ 3. Plaintiff's mortgage has since been purchased by defendant, JP Morgan Chase Home Finance. Id., ¶¶ 2-3. While it is not explicitly pled, Plaintiff went into default on her mortgage.*fn4 See generally, Complaint, Second Count, ¶ 4-9.

After the default, Plaintiff alleges that on four separate occasions, February 14, 2008, March 26, 2008, September 28, 2009 and October 9, 2009, WaMu and its agent LPS*fn5 broke into the Property, vandalized and destroyed Plaintiff's personal property, and burglarized Plaintiff's home without Plaintiff's knowledge or permission. Id., ¶ 9. In addition, Plaintiff alleges that WaMu and LPS changed the locks on the Property, precluding Plaintiff from entering the Property. Id., ¶¶ 16-20. Plaintiff alleges that under the terms of the mortgage, WaMu had the responsibility to contact Plaintiff in the event it wanted access to the Property. Id., ¶ 4. These alleged "break-ins" are the subject of this suit.

Plaintiff and Chase and/or WaMu had numerous telephone conversations with Plaintiff beginning on November 30, 2007, and continuing through February 14, 2008, regarding the first and second mortgage liens on the property. Those conversations included discussions regarding mediation and settlement, and short sale offer proposals by Plaintiff. Despite the settlement conversations, Plaintiff alleges that WaMu and its agents engaged in the "break-ins." Id., ¶¶ 2-20. In addition to the "break-ins," WaMu and its agents allegedly 1) failed to advise who was hired to change the locks and "winterize" the Property; (2) failed to advise who was in possession of Plaintiff's keys to the Property; and 3) failed to surrender the keys to the Manchester Police Department. Id. Plaintiff alleges that she reported the February 14, 2008 incident to the Manchester Police Department, as well as her insurance company, defendant Allstate. Third Party Complaint, First Count, ¶¶ 2, 4.

Plaintiff then filed an insurance claim for theft and burglary with Allstate on or about February 18, 2008, under the claim #0111040713. Third Party Complaint, First Count, ¶¶ 4-5. Subsequently, Plaintiff alleges that Allstate denied Plaintiff's claim, despite having an obligation to reimburse Plaintiff for destruction and/or theft of personal property resulting from the"break-ins." Id., ¶¶ 8, 10. Plaintiff further asserts that Allstate "failed to find the person or persons responsible for the burglary of Plaintiff's home." Id., ¶ 10.

Plaintiff filed the instant action against Defendants in the Superior Court of New Jersey on December 14, 2009. The Complaint and the Third Party Complaint assert twenty-nine counts against Defendants, alleging a variety of causes of action, including violations of the federal constitution. Chase then removed the case to this Court on January 15, 2010, based on federal question jurisdiction. A summary of all counts in the Complaint and the Third-Party Complaint is provided in the chart below:

Count I, Complaint; Count I, Third Breach of Contract Party Complaint Count II, Complaint; Count II Third Breach of Implied Covenant of Good Faith and Fair Party Complaint Dealing Count III, Complaint Interference with Contract by Outsider Count IV, Complaint Trespass to Land Count V, Complaint Trespass to Property Count VI, Complaint Conversion Count VII, Complaint; Count III, Fraud Third-Party Complaint Count VIII, Complaint; Count IV, Violations of New Jersey Consumer Fraud Act Third-Party Complaint ("NJCFA") Count IX, Complaint Failure to Cooperate with Plaintiff's Agent and/or Insurance Company Count X, Complaint; Count V, Negligence Third-Party Complaint Count XI, Complaint; Count VI, Negligent Misrepresentation Third-Party Complaint Count XII, Complaint Violations of the 4th Amendment of the United States Constitution Count XIII, Complaint; Count VII, Violations of the 9th Amendment of the United States Third-Party Complaint Constitution Count XIV, Complaint Violations of the 10th Amendment of the United States Constitution Count XV, Complaint; Count VIII, Violations of the Privacy Act Third-Party Complaint Count XVI, Complaint; Count IX, Slander Third-Party Complaint Count XVII, Complaint; Count X, Defamation of Character Third-Party Complaint Count XVIII, Complaint; Count XI, Intentional Infliction of Emotional Distress Third-Party Complaint In response to the Complaint, Allstate moves to dismiss all counts, claiming that the statute of limitations on Plaintiff's insurance claims has expired. FDIC moves to substitute in the case as the real party of interest in place of Chase, and it moves to dismiss all counts based on this Court's lack of subject matter jurisdiction over claims against FDIC. Finally, LPS moves to dismiss all counts except Counts IV, V, VI, and X. The Court will address and resolve of all three motions in this Opinion.

II. Standard of Review

When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (citation and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 555 U.S. at 555).

In affirming that Twombly standards apply to all motions to dismiss, the Supreme Court recently explained the principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. Therefore, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1949. Ultimately, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Moreover, in deciding a motion to dismiss, the court may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of plaintiff's claim. Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir.2004).

The Third Circuit recently reiterated that "judging the sufficiency of a pleading is a context-dependent exercise" and "[s]ome claims require more factual explication than others to state a plausible claim for relief." West Penn Allegheny Health System, Inc. v. UPMC, No. 09-4468, 2010 WL 4840093, at *8 (3d Cir. Nov. 29, 2010). This means that, "[f]or example, it generally takes fewer factual allegations to state a claim for simple battery than to state a claim for antitrust conspiracy." Id. That said, the Rule 8 ...


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