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Andrew Politi v. Peoples Mortgage Corporation

February 14, 2011

ANDREW POLITI,
PLAINTIFF,
v.
PEOPLES MORTGAGE CORPORATION, ET. AL. DEFENDANTS.



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

NOT FOR PUBLICATION

OPINION

Presently before the Court are motions to dismiss by Defendants Select Portfolio Servicing, Inc. ("SPS"), Credit Suisse Financial Corporation ("Credit Suisse"), and U.S. Bank National Association, As Trustee On Behalf of the Adjustable Rate Mortgage Trust 2007-1, Adjustable Rate Mortgage Backed Through Certificates, Series 2007-1 ("US Bank")(collectively referred to as "Defendants") pursuant to Fed. R. Civ. P. 12(b)(6).*fn1 Defendants seek to dismiss Plaintiff Andrew Politi's ("Plaintiff") Four-Count Complaint stemming from a home mortgage transaction between Plaintiff and Defendants. Each Defendant asserts the same basis for seeking judgment on all counts.*fn2 Specifically, Defendants claim that Plaintiff has failed to state any claims for which relief may be granted. For the reasons that follow, the Court will dismiss Plaintiff's claims against all Defendants.

I. BACKGROUND

This action arises out of the refinancing of Plaintiff's mortgage loan. At the time of the transaction, Plaintiff owned real property located at 20 Central Avenue, East Brunswick, New Jersey. See Compl. at ¶ 1. Defendant PMC is a mortgage broker or banker, licensed by the State of New Jersey, that originates residential mortgage loans. Id. at ¶ 2. Saypol is a mortgage broker and / or mortgage originator for PMC. Id. at ¶ 3. Credit Suisse is a mortgage broker or banker, also licensed by the State of New Jersey to broker or originate residential home mortgage loans. Id. at ¶ 4. SPS is a company that services mortgage loans, and is the servicer of the loan on Plaintiff's property. US Bank is the trustee of the Adjustable Rate Mortgage Trust 2007-1 and Adjustable Rate Mortgage Backed Pass through Certificates, Series 2007-1, and the current owner of the residential mortgage loan on Plaintiff's property.

In October 2006, Plaintiff applied to Saypol and PMC for a loan to refinance his property. Id. at ¶ 8. Plaintiff requested a thirty-year fixed rate conventional mortgage. Compl. at ¶ 9. Saypol, however, allegedly advised Plaintiff to apply for a seven-year adjustable rate mortgage loan with an interest-only payment. Compl. at ¶ 10. According to Plaintiff, Saypol additionally stated that he would refinance Plaintiff's loan again prior to the first adjustment period which was to occur in the 7th year. Compl. at ¶ 15. Moreover, Plaintiff alleges that Saypol advised him to make "extra principle" payments each month. With this information in mind, Plaintiff applied for the seven-year interest-only adjustable rate mortgage. Compl. at ¶ 10.

At the time the refinance application was made, Plaintiff provided PMC with information concerning his monthly assets and liabilities. Compl. at ¶ 13. Defendants did not ask or independently request information regarding Plaintiff's income, asset amount, or bank account for purposes of verifying assets or monthly reserves to originate and underwrite the loan. Compl. at ¶ 14. On October 13, 2006, Plaintiff closed on the mortgage refinance loan. Id. at ¶ 8. At the time of closing, the final application reflected a loan payment amount that was almost identical to the amount of Plaintiff's previous loan payments. Id. at ¶ 15.

Plaintiff filed the instant suit against Defendants on July 6, 2010 in the Superior Court of New Jersey, Chancery Division, Middlesex County. In the Complaint, Plaintiff avers that Defendants committed fraud by inducing him to enter into the mortgage loan refinance transaction with terms that were different from those he originally desired. The Complaint sets forth four (4) different causes of action including violations of: the federal Truth-in-Lending Act ("TILA"), 15 U.S.C. § 1601 et. seq., the Federal Home Ownership and Equity Protection Act ("HOEPA"), 15 U.S.C. § 1639, et. seq., and the New Jersey Consumer Fraud Act ("NJ CFA"), N.J.S.A. 56:8-1, et. seq., as well as a claim of common law fraud. On or about August 16, 2010, Defendants timely removed the matter to this Court.

II. STANDARD OF REVIEW

When reviewing a motion to dismiss, 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)(citations 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 sets of facts in support of his claim which would entitle him to relief." Bell Atlantic Corp., 550 U.S. 561 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set for in a complaint "must be enough to raise a right to relief above the speculative level." Id. 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, 550 U.S. at 556).

In affirming that the Twombly standards apply to all motions to dismiss, the Supreme Court explained the following 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, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. The plausibility standard requires that "the plaintiff plead [.] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" and demands "more than a sheer possibility that a defendant has acted lawfully." Iqbal, 129 S.Ct. at 1249 (quoting Twombly, 550 U.S. at 556). 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, 578 F.3d at 211. In evaluating a motion to dismiss, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the complainant's claims are based upon these documents. Pension Benefit Guar. Corp. v. White Consol. Indus., 98 F.2d 1192, 1196 (3d Cir. 1993). Importantly "a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document. Otherwise a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied." Id. (emphasis added).

III. DISCUSSION

The Court will begin by addressing a preliminary matter. On September 20, 2010, Plaintiff submitted papers in Opposition to Defendants' Motion to Dismiss in which he asserted legal arguments that the Court will address in the present opinion. However, Plaintiff's opposition papers also contain a "Statement of Undisputed Material Facts." As discussed above, it is well-established that on a Rule 12(b)(6) motion to dismiss, the Court may consider only the facts alleged in the pleadings, undisputed documents alleged or referenced in the complaint, and public records of which the Court may take judicial notice. See Aruanno v. Mail, No. 07-3867, 2010 WL 2710564, at *5 (D.N.J. July 10, 2010; Steinhardt Group Inc. v. Citicorp, 126 F.3d 144, 145 & n. 1 (3d Cir.1997); Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group, Ltd., 181 F.3d 410, 426-427 (3d Cir.1999). Thus, the ...


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