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

March 1, 2011

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*NOT FOR PUBLICATION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

Previously, this Court ruled on several motions to dismiss filed by Defendants Federal Deposit Insurance Corporation ("FDIC"), Allstate Insurance Company ("Allstate"), and LPS Field Services ("LPS"). In an Opinion and Order dated December 22, 2010, the Court dismissed Plaintiff Irene Fiorello's ("Plaintiff") claims against FDIC for lack of subject matter jurisdiction, certain counts against LPS, and converted Allstate's motion to a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d). See Fiorello v. WaMu, No. 10-0273, 2010 WL 5392923 (D.N.J. Dec. 22, 2010). In this matter, Plaintiff moves for reconsideration of the Court's decision contending that certain claims in the Complaint*fn1 against defendant JP Morgan Chase Home Finance ("Chase") should have survived the motions to dismiss. In this Opinion, the Court will

address both Plaintiff's motion for consideration, as well as the converted summary judgment motion. For the reasons that follow, Plaintiff's motion for reconsideration is denied as moot, and Allstate's motion for summary judgment is granted.

I. Factual and Procedural History

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. On September 25, 2008, by the order of the Office of Thrift Supervision, Order # 2008-36, WaMu was declared insolvent and FDIC was appointed as receiver. FDIC then sold the assets and only certain designated liabilities of WaMu to Chase, explicitly retaining under the purchase agreement all liabilities arising out of WaMu's pre-insolvency lending activities. Fiorello, 2010 WL 5392923, at *4. As a result, Plaintiff's mortgage was purchased by defendant, JP Morgan Chase Home Finance. Id., ¶¶ 2-3. While it is not explicitly pled, Plaintiff went into default on her mortgage. 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*fn2 and its agent LPS 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, under the claim #0111040713. Third Party Complaint, First Count, ¶¶ 4-5. The claim was considered and ultimately denied on November 14, 2008. Allstate's Brief, Exhibit E. 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." Third Party Complaint, First Count, ¶¶ 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. FDIC moved to substitute for Chase as the real party of interest on any claims related to WaMu's lending activities prior to Chase's purchase of Plaintiff's mortgage on September 25, 2008, and sought to dismiss the claims against it for lack of subject matter jurisdiction. Both Allstate and LPS also moved to dismiss Plaintiff's claims against them. The Court granted FDIC's motion, dismissed certain claims against LPS, and converted Allstate's motion to one of summary judgment pursuant to Fed. R. Civ. P. 12(d). Presently, Plaintiff moves for reconsideration of the Court's decision arguing that certain claims against Chase were erroneously dismissed along with claims against FDIC. The Court now addresses both the motion for reconsideration as well as the converted motion for summary judgment.

II. Motion for Reconsideration

Plaintiff asserts that certain claims against Chase were erroneously dismissed by the Court in its disposition of the motion to dismiss filed by FDIC. However, to the extent that Plaintiff may have misconstrued the Court's previous Opinion and its accompanying Order as holding that FDIC had assumed all claims against Chase in this matter, the Court hereby clarifies that the claims that were dismissed were only those assumed by FDIC under the September 25, 2008 Purchase Agreement between FDIC and Chase. See Fiorello, 2010 WL 5392923, at *4-5. More specifically, those claims that were dismissed only related to the alleged trespass activities by WaMu/Chase which occurred on February 14, 2008 and March 26, 2008. Any claims Plaintiff asserted in the Complaint arising out of alleged activities by WaMu/Chase that occurred after those dates -- namely, on September 28, 2009 and October 9, 2009 -- were not dismissed by the ...

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