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Thomas Gage v. Wells Fargo Bank

September 9, 2011

THOMAS GAGE, PRO SE PLAINTIFF,
v.
WELLS FARGO BANK, N.A. AS, AND SOMERSET COUNTY SHERIFF FRANK J. PROVENZANO, DEFENDANTS.



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

*NOT FOR PUBLICATION

OPINION

This is one of many cases brought by pro se Plaintiff Thomas Gage ("Plaintiff") in this Court related to a state court order of foreclosure on his home. In the instant matter, Defendant Wells Fargo Bank N.A. AS ("Defendant" or "Wells Fargo") moves to dismiss Counts I and IV of the Complaint - these counts appear to be the only claims asserted against Wells Fargo.*fn1 Essentially, Count I alleges that Defendant had no right to foreclose on Plaintiff's home and Count IV alleges that Defendant committed criminal acts in enforcing the foreclosure without having any right to do so. For the reasons that follow, Defendant's motion is GRANTED.

BACKGROUND

For the purposes of this motion, the Court will take the relevant allegations set forth in the Complaint as true.*fn2 As indicated by Plaintiff's description in his Opposition Brief and documents he referenced in his Complaint, on February 13, 2006, Plaintiff executed a Promissory Note in favor of Mortgage by Equity Source Home Loans, LLC in the amount of $750,000. This Note was secured by a Mortgage on the real property located at 51 Hillcrest Boulevard, Warren, New Jersey (the "Property"), executed by Plaintiff and Lucia Gage. According to Defendant, pursuant to a Pooling and Servicing Agreement, on June 11, 2008, the Mortgage was subsequently assigned to Wells Fargo. This assignment was recorded in the Somerset County Clerk's Office on July 1, 2008. Notwithstanding the assignment, Plaintiff vehemently disputes that Wells Fargo legitimately held the Mortgage.

While Plaintiff never referenced in the Complaint that he defaulted on the Mortgage, the documents from the state court foreclosure action reveal that, on or about February 1, 2008, Plaintiff and Lucia Gage defaulted on the Note and Mortgage, and as a result, a Foreclosure Complaint was filed by Wells Fargo in the Superior Court of New Jersey, Chancery Division, Somerset County under Docket No.: F-22089-08. Because no responsive pleading or Answer was ever filed by Plaintiff or Lucia Gage to the Foreclosure Complaint, a Final Judgment or Foreclosure of the Property was entered on April 13, 2010. See Final Judgment dated April 13, 2010, p. 1. Importantly, Plaintiff does not dispute the existence of the judgment, nor does he dispute the validity of the judgment, a copy of which is attached to Defendant's moving papers. See, e.g., Compl., ¶¶ 24-26.

According to Defendant, a sheriff sale was scheduled and held on July 6, 2010, at which time Wells Fargo was the successful bidder for the Property. On October 28, 2010, a Deed was recorded in the Somerset County Clerk's Office transferring the subject property to Wells Fargo. See Somerset County Recorded Deed dated October 28, 2010. Thereafter, Wells Fargo, pursuant to its status as owner of the Property, obtained a Writ of Possession and forwarded it to the Sheriff of Somerset County with instructions to evict the occupants. During the pendency of this motion, Plaintiff was evicted from the Property.

Plaintiff initiated this suit on February 14, 2011, seeking, inter alia, "Federal Protection against the unlawful Foreclosure proceedings by the Defendants and to have the subject property returned into my name and the Mortgage held by Wells Fargo Bank, N.A. voided." See Opposition Brief at p. 7. In that respect, Plaintiff asserts two counts against Wells Fargo - Counts I and IV. Both counts challenge Defendant's right to bring a foreclosure action against Plaintiff and Count IV additionally alleges "negligent actions of the Defendants" without specifying what actions committed by Defendant are alleged to be negligent. In addition, Plaintiff asserted claims against defendant Provenzano. Because Provenzano failed to answer timely, default was entered against him on April 11, 2011. However, Provenzano filed an answer on April 18, 2011. In the instant matters, Plaintiff moves for default judgment against Provenzano, and Wells Fargo moves to dismiss those counts asserted against it by Plaintiff.

DISCUSSION

I. Standard of Review

The Federal Rules of Civil Procedure provide that a complaint "shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Fed. R. Civ. P. 8(a). The purpose of a complaint is "to inform the opposing party and the court of the nature of the claims and defenses being asserted by the pleader and, in the case of an affirmative pleading, the relief being demanded." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1182 (3d ed. 2004).

In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a Court must take all allegations in the complaint as true, viewed 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 Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court "retired" the language 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). Rather, the factual allegations in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 555. The Third Circuit summarized the pleading requirement post-Twombly:

The 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 ...


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