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Kokoshka v. Banco Popular North America

United States District Court, D. New Jersey

March 17, 2015



KEVIN McNULTY, District Judge.

Plaintiff Jerry Kokoshka ("Kokoshka"), appearing pro se, brought this action after the defendant, Banco Popular North America ("Banco Popular") denied his application for a home mortgage loan. Presently before the Court is Banco Popular's motion to dismiss. For the reasons set forth below, the motion is granted and the Complaint will be dismissed without prejudice to the submission of an amended complaint specifying the claims that remain and the basis for them.


On January 29, 2014, Kokoshka, a citizen of New Jersey, executed an agreement (the "Agreement") to purchase a condominium in Morristown, New Jersey for $300, 000. Pursuant to that agreement, he deposited $30, 000 in escrow and undertook to obtain a mortgage loan to pay the balance of the sale price. The Agreement provided that, if Kokoshka was unable to secure a mortgage and complete the purchase, the seller could keep the deposit.

In March 2014, Kokoshka applied for a $264, 000 mortgage loan from Banco Popular, a New York state charted bank. (See Dkt. No. 1-1, at 46)

On March 10, 2014, Banco Popular sent Kokoshka a Good Faith Estimate ("GFE") of certain terms associated with the mortgage loan should his application be approved. The GFE projected that the loan would bear an interest rate of 5.170% for a term of 30 years. (Id. ) The GFE also stated that Kokoshka would incur approximately $8, 614 in "settlement charges" in connection with finalizing and closing the loan. (Id. ) These estimated terms were set to expire on "March 24, 2014 12:00 AM ET, " at which point the rates and fees would be subject to change. (Id. ) Kokoshka had originally planned to close on the property on March 31, 2014. But because the interest rate quoted in the GFE was not guaranteed after March 24, 2014, he rescheduled the closing for that day.

After conducting additional due diligence, Banco Popular denied Kokoshka's application. In a letter dated March 18, 2014, Banco Popular set forth its reasons for denying the loan. It is unclear when Kokoshka actually received this letter. He claims that the notice was postmarked March 21, 2014, but did not arrive until the afternoon of March 24, 2014. In any event, Kokoshka maintains that he did not see the letter until after he was scheduled to close on the property.

Kokoshka claims that Banco Popular's denial of his loan application put his $30, 000 deposit in jeopardy. Rather than take the loss, he convinced the seller that he could quickly raise the funds needed to make a cash purchase. Kokoshka contributed $143, 184 of his own money, and borrowed an additional $156, 816 from his parents. With these funds in place, Kokoshka closed on the property on April 1, 2014.

On May 30, 2014, Kokoshka commenced this action against Banco Popular in the Morris County Superior Court. The Complaint includes a narrative of the above-mentioned events and asserts that Banco Popular wrongfully denied Kokoshka's loan application. It does not, however, allege that Banco Popular violated any statutes, regulations, or common law rules. The relief requested by Kokoshka is equally indeterminate. He contends that he will have to apply for another mortgage loan on the now-purchased property in order to repay his parents. He demands that Banco Popular retract the letter denying his application so that it will not jeopardize his ability to secure a loan from another lender. He next contends that if and when he obtains this loan, Banco Popular must reimburse him for the associated settlement costs, as well as for the difference between the total amount he would have paid under the Banco Popular loan and will pay under this future loan.

Banco Popular removed the action to federal court on July 14, 2014.

Now before the Court is Banco's Popular's motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6).


A. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it 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). For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that well-established "reasonable inferences" principle is not undermined by subsequent Supreme Court case law). Where the plaintiff proceeds pro se, the court must "liberally construe[]" the complaint and hold it to "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, ...

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