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Deirdre Davidson v. Cornerstone Bank

February 16, 2011

DEIRDRE DAVIDSON,
PLAINTIFF,
v.
CORNERSTONE BANK, ET AL., DEFENDANTS.



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

OPINION

This matter comes before the Court upon the Motion of Defendant Cornerstone Bank (hereinafter "Cornerstone") to Dismiss Plaintiff's Complaint [Doc. 19] and Defendants' Motions to Dismiss Plaintiff's Cross-claim [Docs. 31 & 32]. For the reasons expressed below, Defendant Cornerstone's Motion to Dismiss will be granted in part and denied in part and Defendants' Motions to

Dismiss Plaintiff's Cross-claim will be granted.

I. JURISDICTION

Plaintiff has alleged several violations of federal and state law. This Court has jurisdiction over Plaintiff's federal claims under 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over Plaintiff's related state law claims under 28 U.S.C. § 1367.

II. BACKGROUND*fn1

Sometime in June 2007, Plaintiff, Deirdre Davidson,*fn2 received a mail flyer from E Mortgage Management, LLC*fn3 (hereinafter "E Mortgage") advertising credit repair and mortgage assistance for distressed homeowners. Hoping to take advantage of those services because her existing mortgage loan was delinquent and in foreclosure, Plaintiff contacted E Mortgage and spoke with Joseph Spagnoletti*fn4 (hereinafter "Spagnoletti"). Plaintiff, whom recently lost her job, learned Spagnoletti would be her "handler" at E Mortgage and its program would save her home from foreclosure. According to Spagnoletti, E Mortgage would "hold" Plaintiff's house while she continued to occupy the property. In return, Plaintiff would make twelve lease payments, with twelve postdated checks, to E Mortgage while she tried to secure full time employment. Once she obtained full time employment, E Mortgage would attempt to secure Plaintiff a loan with lower monthly payments and transfer the home back to her.

Several weeks later, on October 31, 2007, Plaintiff arrived at E Mortgage's office to sign the deed of her house over to E Mortgage. To her surprise, Plaintiff was presented with several documents she had never previously seen or reviewed. Plaintiff signed the documents, which included (1) a sale agreement selling her property to E Properties, LLC*fn5 (hereinafter "E Properties"), (2) a net lease agreement that required Plaintiff, as tenant, to pay rent for twelve months and to assume all maintenance, repair, utility and insurance responsibilities for the property, (3) a "disclosure" advising Plaintiff she entered into a "foreclosure and debt relief program" that would permit her to repurchase the home, within twelve months, at 75 percent of its value and (4) a "Notice to Title Company" agreeing that E Freedom Properties, LLC*fn6 (hereinafter "E Freedom") would receive $47,752.00 from the loan proceeds, this amount represented the equity extracted from

Plaintiff's property.*fn7 Plaintiff was also told her rent payments would come from the loan proceeds and that any equity from her property would be held in escrow.*fn8

In May 2008, Plaintiff received a letter from a representative of E Properties discussing repair of her credit with a company YCS. Sometime thereafter, Plaintiff spoke with the representative from E Properties and told her that she had not heard from YCS and had not been working on credit repair with anyone.

In September 2008, Plaintiff informed Spagnoletti that she had acquired full time employment. After informing Spagnoletti of this news, Plaintiff did not receive any contact from Defendants until February 2009. That month Gregory Englesbe (hereinafter "Englesbe"), principal of E Mortgage and E Properties, told Plaintiff she was in arrears on her rent. In March 2009, E Properties brought suit to evict Plaintiff from the property. Plaintiff also alleges that Defendants E Mortgage, E Freedom, E Properties, Englesbe or Spagnoletti (collectively "E Defendants") never engaged in any credit repair on her behalf.

On June 2, 2010, Plaintiff commenced this suit against Defendants. In response, Defendants E Mortgage, E Freedom, E Properties and Englesbe answered the Complaint and raised several counterclaims [Doc. 11]. Defendant Cornerstone, on August 17, 2010, filed a Motion to Dismiss the Complaint. Several weeks later, E Defendants amended their answer and counterclaim [Doc.28]. Shortly thereafter, Plaintiff answered the counterclaim and filed a Cross-claim against all Defendants [Doc. 30]. Defendants subsequently moved to dismiss Plaintiff's Cross-claim. Plaintiff opposes all Motions.

III. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they ...


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