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Gretchen Schoenhaar v. Phh Corporation F/K/A Cendant Mortgage

December 3, 2012

GRETCHEN SCHOENHAAR PLAINTIFF,
v.
PHH CORPORATION F/K/A CENDANT MORTGAGE
DEFENDANT.



The opinion of the court was delivered by: William J. Martini, U.S.D.J.

OPINION

This matter comes before the Court on Defendant PHH Corporation's ("PHH's") motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Pro se Plaintiff Gretchen Shoenhaar has not opposed the motion.*fn1 For the reasons set forth below, Defendant's motion is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

The allegations in Plaintiff's Complaint are less than artfully plead. However, certain documents attached to Defendant PHH's motion to dismiss help to flesh out the timeline of events set forth in Plaintiff's pleading. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993) (the court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s].")

Based on those documents, the Court notes the following: First, that on January 31, 2000, PHH*fn2 loaned Plaintiff's $228,000.00, as set forth in the parties' fixed rate mortgage note (the "Mortgage"). (Cert. of Elizabeth J. Kim, Ex. A, ECF No. 6.) As part of the Mortgage, PHH received a security interest in Plaintiff's residence located at 15 Parsippany Road, Whippany New Jersey. (Id. at Ex. B.) Second, that based on Plaintiff's alleged failure to make certain mortgage payments, PHH informed Plaintiff that it intended to foreclose on the Whippany property on at least five separate occasions, via letters dated October 17, 2005, May 16, 2007, July 17, 2007, August 15, 2007, and January 12, 2012. (Id. at Ex. D.) And third, that Plaintiff has filed three separate Mortgage-related complaints against PHH with the New Jersey Department of Banking and Insurance. (Id. at Exs. E, F, G.) The Court will now address the substance of Plaintiff's pleading.

Plaintiff's Complaint is loosely divided into fifteen "Counts" that are rarely specific on dates and often contain overlapping factual allegations.*fn3 However, when liberally construing the pleading, the Court gleans that Plaintiff alleges the following: *fn4

PHH used fraudulent means when it originally loaned Plaintiff money in 2000. (Compl. Seventeenth Count). In 2001 and again in 2007, PHH filed fraudulent foreclosure actions against Plaintiff. The 2001 foreclosure action was resolved sometime in 2002; the 2007 foreclosure action was dismissed on June 8, 2011. (Id. at First, Fifth Counts.) These foreclosure actions have caused Plaintiff considerable emotional distress and injured her reputation. (Id. at Second, Third, Sixth Counts.)

After the 2007 foreclosure action was dismissed, PHH failed to provide Plaintiff with an accurate mortgage payoff statement in a reasonable amount of time. (Id. at Seventh, Eighth, Tenth Counts.) And since 2007, PHH has failed to provide certain other mortgage documents to Plaintiff. (Id. at Sixteenth Count.)

At the time PHH commenced each foreclosure action, it reported incorrect information to credit bureaus. And each time, PHH failed to correct those inaccurate reports in a reasonable amount of time. (Id. at First, Third Counts.) Due to PHH's negligence and inaccurate reporting, Plaintiff has suffered widely fluctuating credit scores and therefore cannot refinance her Mortgage or receive additional lines of credit. (Id. at Ninth, Eleventh, Twelfth Count.) PHH's failure to correct its inaccurate reports violates the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq. (Id. at Eighth Count.)

Plaintiff also claims that PHH "contacted [Plaintiff] repeatedly by automated messages on [Plaintiff's] voicemail" and continued to call her after she requested that PHH stop contacting her by phone. (Id. at Thirteenth Count.) Plaintiff does not specify the purpose of PHH's phone calls. Plaintiff asserts that PHH's behavior violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. (Id.)

On February 29, 2012, Plaintiff filed this action in New Jersey Superior Court. On April 5, 2012, Defendant removed this matter to district court in the light of Plaintiff's FCRA and FDCPA claims (Eighth and Thirteenth Counts, respectively). Thereafter, Defendant filed the present motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

II. DISCUSSION

A.Failure to State a Claim

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). Moreover, where the plaintiff is proceeding pro se, the complaint is "to be ...


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