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Joy Nelson, et al v. Maverick Funding Corp

March 23, 2011


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



This matter comes before the Court upon the motions to dismiss the First Amended Complaint ("FAC" or "Complaint") [docket entry no. 3] filed by Defendant NattyMac, LLC ("NattyMac) [docket entry no. 29], Defendant Comprehensive Title Services, Inc. ("Comprehensive") [docket entry no. 30], Defendant Norman Zolkos [docket entry no. 31], and Defendants Maverick Funding Corp. ("Maverick"), Ralph Sebastiano Vitiello, Michael Frank Petruccelli, and Jeffrey Penington [docket entry no. 32]. Plaintiffs Joy Nelson, Jennifer Nelson and Martin McElroy have filed a motion to strike documents from Maverick's motion to dismiss [docket entry no. 38] and a motion for leave to amend their complaint [docket entry no. 50]. The parties have fully briefed each motion. The Court has considered the papers submitted by the parties, and pursuant to Federal Rule of Civil Procedure 78, rules on the motion without oral argument. For the reasons discussed below, the Court grants the motions to dismiss and dismisses the Complaint in its entirety.*fn1


Plaintiffs filed this mortgage fraud action in this Court on February 12, 2010. The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Based on the allegations in the Complaint, and assuming their truth for purposes of this motion only, the Court summarizes the factual background as follows:

Plaintiff Joy Nelson refinanced her home in August 2008. Plaintiffs Jennifer Nelson and Martin McElroy closed on their home refinancing on February 25, 2009. (FAC ¶ 4.13). Defendant Maverick acted as the mortgage banker in both transactions. The mortgage broker was Homeland Funding Solutions.*fn2 Defendant NattyMac was the warehouse lender and Defendant Comprehensive conducted the title reviews.

With regard to Jennifer Nelson and Martin McElroy's closing, Homeland received a loan origination fee of $2,793.00, and a loan discount fee of $2,504.93. (FAC ¶ 4.18). Homeland also received a Yield Spread Premium (YSP) from Maverick.. (FAC ¶ 4.19). Comprehensive received a fee of $250. (FAC ¶ 4.18). Plaintiffs also contend that both the "Amount Financed" and the "annual percentage rate" were understated on the TILA Disclosure Statement. (FAC ¶ 6.74).


A. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims have facial plausibility. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). This means that the Complaint must contain sufficient factual allegations to raise a right to relief above the speculative level, assuming the factual allegations are true. Id. at 1965; Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). The Supreme Court has made clear that "a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, 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 those documents. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The issue before the Court "is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

In deciding a motion to dismiss, courts may consider "matters incorporated by reference or integral to the claim." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Accordingly, this Court may properly consider the loan file documents of Jennifer and Joy Nelson attached to the Declaration of Jeffrey Pennington [docket entry no. 32-2].*fn3


Plaintiffs open their Complaint by alleging that Defendants conduct violated the civil RICO statute. The Court begins by quoting the governing statutory language ...

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