United States District Court, D. New Jersey
December 30, 2014
KEVIN FINCH, MARC WERNER, and DONNA WERNER, individually and on behalf of all others similarly situated, Plaintiffs,
PHH MORTGAGE CORPORATION, Defendant.
PETER A. MUHIC, SAMANTHA E. JONES, TYLER STEPHEN GRADEN, KESSLER TOPAZ MELTZER & CHECK, LLP, RADNOR, PA., On behalf of plaintiffs.
PETER J. LEYH, BRAVERMAN KASKEY P.C., PHILADELPHIA, PA., On behalf of defendant.
MEMORANDUM OPINION & ORDER
NOEL L. HILLMAN, District Judge.
Presently pending before the Court is the motion of defendant, PHH Mortgage Corporation, to dismiss the putative class action claims brought by plaintiffs Kevin Finch, Marc Werner and Donna Werner regarding PHH's "forced-placed" or "lender-placed" hazard insurance policies, which are imposed as a part of their home mortgage agreements; and
Plaintiffs claiming that if a borrower fails to carry hazard insurance on the mortgaged property and to provide evidence of insurance to PHH, PHH is authorized to "force place" insurance on the property, whereby PHH independently obtains insurance and then charges borrowers amounts to purportedly pay for such insurance by diverting the borrowers' monthly mortgage payments or debiting the borrowers' escrow accounts; and
Plaintiffs claiming that this practice violates numerous federal and state laws because, among other things: borrowers have no say in the selection of the force-placed insurance carrier or the terms of the force-placed insurance policies; such policies provide less coverage and are substantially more costly than the borrowers' original policies, while providing improper, undisclosed and lucrative financial benefits to PHH which are unrelated to the provision of force-placed hazard insurance; borrowers are charged retroactively for coverage before the borrowers are notified of the force-placement of the coverage; and such policies often provide unnecessary or duplicative coverage in that they are improperly backdated to collect premiums; and
PHH having moved to dismiss plaintiffs' claims, arguing, among other things, that recent decisions in the Seventh Circuit Court of Appeals and the Central District of California, which are applicable in this case because Finch's property is located in Illinois and the Werners' property is located in California, have dismissed identical claims as advanced in this case; and
Plaintiffs having opposed PHH's motion, arguing that their claims may proceed; and
The Court finding that the parties' briefing has raised numerous issues aside from the standard review of the sufficiency of plaintiffs' pleading pursuant to the Twombly/Iqbal analysis of Rule 12(b)(6) motions, including:
(1) A case containing several identical claims is presently proceeding in this Court, Gallo v. PHH, Docket No. 12cv-1117, and currently pending in that case is a motion to certify the action as a class action;
(2) This suit is advanced by citizens of Illinois and California, and those states' laws appear to be the applicable law to apply, at least with regard to plaintiffs' state law claims; and
(3) For their federal law and state law based claims, plaintiffs cite to case law from cases throughout the country to support the viability of their claims; and
The Court recognizing that these issues are not instantly fatal to plaintiffs' claims, but they cause the Court to question (1) whether plaintiffs' interests, at least partially, can be protected in the Gallo case, (2) whether it is advisable for the Court to consider out-of-circuit state law claims as part of its supplemental jurisdiction discretion,  and (3) whether, with the numerous out-of-circuit cases that appear to advance identical claims against different mortgage companies, a uniform consensus as to the merit of plaintiffs' claims has not already been established;
IT IS on this 29th day of December, 2014
ORDERED that defendant's motion to dismiss/amended motion to dismiss [6, 8] is DENIED WITHOUT PREJUDICE pending a hearing to be held on Wednesday, February 11, 2015 at 10:30am in Courtroom 3A, at which time the motion to dismiss will be reinstated.