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Merla Lawrence, Pro Se v. Emigrant Mortgage Company

March 30, 2012


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


Pending before the Court is Defendants' Emigrant Mortgage Company ("Emigrant") and Retained Realty Inc.'s ("Retained Realty") motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), (D.E. 8), Kenneth Samson's motion to dismiss pursuant to 12(b)(6), (D.E. 10), and Prime Time Mortgage's ("PTM") motion to dismiss pursuant to 12(b)(6) and 12(b)(1). (D.E. 16). This Court has jurisdiction under 28 U.S.C. § 1331. The Court has considered the papers submitted in support of and in opposition to the instant motions and decides this matter without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons set forth below, Defendants' motions are GRANTED in part and DENIED in part.


A.Parties and Claims

The underlying issue in this case is whether the Defendants have engaged in violations of federal statutory and state common law, the result of which allegedly caused Plaintiff Merla Lawrence ("Plaintiff" or "Ms. Lawrence") to lose her home and suffer additional economic injuries.

Plaintiff is the former owner of a home in South Orange, New Jersey. Defendant Emigrant is a mortgage company, and Defendant Retained Realty is a buyer and seller of real estate, including foreclosed homes. Defendant Kenneth Samson is an attorney for Emigrant. Defendant Darnell Davis is a mortgage broker with PTM. (D.E. 1, Compl. ¶¶ 1-6, 12-13).

In her first count, Plaintiff, acting pro se, alleges that Defendants Emigrant, PTM, Mr. Davis, and Mr. Samson violated the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., by failing to disclose to Plaintiff a "clear and conspicuous statement of the interest rate, the monthly payment amount and default penalties under [her] Loan." (Id. ¶ 65). She claims that she did not see any of the loan documents until May 2010, and that the documents contain different interest rates. (Id.) She also was not told she had a right to decline the loan agreement and that her home would be foreclosed on in case of default, which according to Plaintiff, is a violation of TILA. (See id. ¶¶ 60-69).

In her second count, Plaintiff alleges that the same Defendants violated § 1635 of TILA by failing to notify her of her right to rescind. (Id. ¶¶ 70-73).

In her third count, Plaintiff alleges that the same Defendants violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq., by failing to make available for inspection a HUD-1 Settlement Statement, a disclosure form regarding mortgage loan transactions (including real estate settlement cost statements) that includes the disclosure requirements of RESPA and TILA, prior to closing.*fn1 (Id. ¶¶ 74-80).

In her fourth count, labeled an action for "predatory lending," Plaintiff alleges that the same Defendants intentionally "engaged in a pattern of fraudulent and abusive practices with respect to the Loan" with the purpose of causing her to enter the loan agreement. (Id. ¶ 81). Plaintiff avers that Mr. Davis, through PTM, misrepresented the terms of the loan, led her to believe that Mr. Samson was her attorney, and approved a loan application "that [Plaintiff] never filled out and that contained fraudulent signatures and inconsistent information concerning interest rates." (Id. ¶ 82). Plaintiff reiterates that she was not provided with any of the federally mandated disclosures and relevant information on the loan terms. (Id. ¶¶ 81-89).

In Plaintiff's fifth count, she alleges that Mr. Davis "steered" her into obtaining the loan so that he could borrow $10,000 from the proceeds of that loan, in violation of TILA, 15 U.S.C. § 1639(b). (Id. ¶¶ 90-95).

In Plaintiff's sixth and final count, she alleges that Emigrant and Retained Realty were unjustly enriched by Emigrant's acquisition of Plaintiff's home by fraudulent means and the subsequent sale of that home to Retained Realty for one dollar. (Id. ¶¶ 96-102).*fn2

B.Factual and Procedural History*fn3

In 2005, Plaintiff Ms. Lawrence sought the assistance of Mr. Davis, a mortgage broker at PTM and family friend, so that she could refinance her then current mortgage loan. (See Compl. ¶ 12). Through Mr. Davis, Plaintiff secured a refinance loan from Emigrant. The loan closing took place on December 27, 2005, at which time Plaintiff executed a promissory note to Emigrant in the amount of $250,000. The loan was secured by a mortgage in favor of Emigrant on Plaintiff's property in South Orange. Present at that closing were Mr. Davis and Mr. Samson, the attorney for Emigrant. (Judge Levy Op. at 2; Compl. ¶ 23).

Plaintiff defaulted on the loan on or about September 1, 2007. (Judge Levy Op. at 2). Thereafter, Emigrant filed a foreclosure complaint on January 14, 2008 in the Chancery Court in New Jersey. (Id.). Plaintiff did not respond to the complaint and default was entered on April 15, 2008.*fn4 Final judgment and a writ of execution were entered on September 22, 2008. (Id.) On July 14, 2009, a sheriff's sale took place in which Emigrant was the successful bidder. (Id.).

On July 8, 2009, Ms. Lawrence, acting pro se, filed a motion to vacate the judgment of the court in the foreclosure action. (Id.). She advanced three grounds: (1) that she was never served with process; (2) that Emigrant failed to produce the original note; and (3) that she was the victim of fraud. (Id.). On August 7, 2009, the Court heard oral argument and denied the motion. (Id. at 3).

Ms. Lawrence then filed a second motion on October 28, 2009, seeking to vacate the sheriff's sale. (Id.). That motion was denied following oral argument. (Id.). On April 12, 2010, the court entered an order extending Ms. Lawrence's time to exercise her right of redemption, finding that she did not have actual knowledge of the date of the sale. (Id.). A plenary hearing at which she could establish her ability to redeem the property was scheduled for May 14, 2010. (Id.). However, that hearing was cancelled once Ms. Lawrence's attorney, Paul DiGiacomo, notified the court that Ms. Lawrence would not be presenting redemption proofs at the hearing. (Id.).

On April 29, 2010, Ms. Lawrence, again acting pro se but having an attorney, filed her last motion in the Chancery Court seeking to vacate the court's final judgment and the sheriff's sale. (Id.). According to her attorney, Mr. DiGiacomo, who filed a supplemental letter of clarification, Ms. Lawrence was seeking relief on the grounds that she "recently received documentation relating to the origination and closing of defendant's loan" giving rise to valid defenses and possible counterclaims in the foreclosure action. (Id.). Relying only on NJ Court Rule 4:50-1(f), she argued that she was the victim of "questionable practices" involving Mr. Samson, Mr. Davis, and Emigrant, at the time of her loan closing in December 2005. (Id.). Judge Levy, treating it as a motion for reconsideration, described the allegations as "fraudulent conduct and predatory lending." (Id.). Ms. Lawrence also contended that Emigrant violated TILA, thereby granting her a right of rescission. (Id. at 3-4).

Judge Levy denied the motion. (Id. at 6). First, the court found that, despite Ms. Lawrence's assertion that her requests for these loan documents were repeatedly rebuffed over the years, Emigrant's counsel certified that Ms. Lawrence first requested copies of these documents on March 29, 2010. (Id.). Thus, she did not have a sufficient basis to support a reconsideration of the court's earlier decision. (Id.). Second, the court found that Ms. Lawrence failed "to demonstrate excusable neglect or a meritorious defense against [Emigrant's] right to foreclose." (Id. at 7). The court further held that Ms. Lawrence's § 1635 TILA claim was time-barred. (Id. at 8-9). On June 17, 2011, Ms. Lawrence filed the subject Complaint in this Court.


A. Defendants

Emigrant argues that Rooker-Feldman, res judicata and the entire controversy doctrine bar this Court's consideration of Counts One, Three, and Four. (Emigrant and Retained Realty Moving Br. at 14-19). Alternatively, Emigrant argues the statute of limitations has expired on Counts One, Two, and Three. (Id. at 23-26).

PTM argues that the statute of limitations has expired on Counts One and Two. Alternatively, PTM contends that it is not subject to the requirements imposed by the TILA sections mentioned in Count One. (PTM Moving Br. at 4-6). Further, PTM argues that res judicata and issue preclusion bar this Court's consideration of Counts Two and Four. (Id. at 7-8, 10-12). As to Count Three, PTM argues that the specific section of RESPA under which Plaintiffs sues does not create a private cause of action. (Id. at 9-10). PTM argues that Count Four should be barred because, assuming it is a fraud claim, Plaintiff cannot satisfy the elements of fraud. (Id. at 10-12).

Mr. Samson argues that the statute of limitations has expired on Counts One, Two, and Three. (Samson Moving Br. at 10-12). Alternatively, Mr. Samson asserts that Count Three must be dismissed because the specific section of RESPA, which Plaintiff sues under, does not create a private cause of action. (Id. at 12). Finally, Mr. Samson contends Count Four must be dismissed because, assuming Plaintiff is pleading fraud in this claim, she has failed to meet the heightened pleading standard for fraud imposed by Rule 9(b), and also failed to meet the elements of fraud under Rule 12(b)(6). (Id. at 13-16).

B. Plaintiff

Plaintiff has filed a Complaint, three opposition briefs, and one additional brief in which she introduces new facts that were not included in her Complaint or three opposition briefs. (See generally Pl. Opp. Br. re: Samson, D.E. 13; Pl. Opp. Br. re: Emigrant and Retained Realty, D.E. 17; Pl. Opp. Br. re: PTM, D.E. 20; Pl. Sur-Reply Br. re: Samson, D.E. 20-1). In her recitation of facts, Plaintiff makes the following legal arguments. Generally, Plaintiff argues that she pursued her rights diligently and that extraordinary circumstances beyond her control prevented her from timely filing, (see, e.g., Pl. Opp. Br. re: Samson at 8-9); that Defendants failed to provide Plaintiff with federally mandated disclosures and documents prior to the loan closing in December 2005, (see, e.g., Pl. Opp. Br. re: PTM at 3-5); and that Defendants engaged in equity stripping, steering, and predatory lending. (Id. at 1-3). Below, the Court summarizes and addresses all of Plaintiff's arguments more specifically.


A. Motion to Dismiss for Lack of Subject Matter Jurisdiction: Rule 12(b)(1)

The standard of review for a motion to dismiss pursuant to Rule 12(b)(1) depends on whether the motion is based on a facial or factual challenge to subject matter jurisdiction. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). If the defendant's attack is facial-i.e., if it asserts that the court lacks jurisdiction over a plaintiff's claim on its face-a court must accept all allegations in the complaint as true and draw reasonable inferences in favor of the plaintiff. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Furthermore, a court "may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction." Abuhouran v. Fletcher Allen Healthcare, No. 07-5108, 2009 WL 1834316, at *3 (D.N.J. June 25, 2009) (citation omitted).

By contrast, a factual challenge attacks the very power of the District Court to hear the case. See Mortenson, 549 F.2d at 891. When considering a factual challenge, a court does not attach a presumption of truthfulness to a plaintiff's allegations. Id. Accordingly, "'conflicting written and oral evidence may be considered and a court may decide for itself the factual issues which determine jurisdiction.'" Hoffman-La Roche Inc. v. Teva Pharm. USA, No. 09-5283, 2011 WL 6028583, at *1 (D.N.J. Dec. 2, 2011) (citation omitted); Martinez v. U.S. Post Office, 875 F. Supp. 1067, 1070 (D.N.J. Jan. 23, 1995) (citation omitted). Nonetheless, "[w]here an attack on jurisdiction implicates the merits of plaintiff's federal cause of action, the district court's role in judging the facts may be more limited." Id. at 1071 ...

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