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Gordon v. Bank of America, N.A.

United States District Court, D. New Jersey

April 12, 2016

LAURI GORDON, Plaintiff,
v.
BANK OF AMERICA, N.A., SETERUS, INC., FEDERAL NATIONAL MORTGAGE ASSOCIATION, JOHN DOES I-X, Defendants.

          OPINION

          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff Lauri Gordon brings this action against Bank of America, N.A. (“BANA”), Seterus, Inc., Federal National Mortgage Association (“Fannie Mae”) and John Does I-X (collectively “Defendants”), alleging common law fraud, breach of contract, breach of duty of good faith and fair dealing, violation of the New Jersey Consumer Fraud Act, and violation of the Fair Debt Collection Practices Act (15 U.S.C. § 1692), in connection with the foreclosure by Defendants of her property in New Jersey State court. This matter comes before the Court on Defendants' simultaneous motions to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (b)(6). There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendants' motions to dismiss are GRANTED.

         I. BACKGROUND

         Plaintiff is a New Jersey resident who owns real property in Wyckoff, New Jersey, which is the subject matter of the mortgage in dispute before the Court. First Am. Compl. (“Compl.”) ¶ 3, ECF No. 19. BANA is, among other things, a mortgage servicer with its principal place of business in North Carolina and was a prior servicer of Plaintiff's mortgage. Id. at ¶ 4. Seterus is a mortgage servicer with its principal place of business in North Carolina and is the current servicer of Plaintiff's mortgage. Id. at ¶ 5. Fannie Mae is a mortgage loan company with its principal place of business in Washington, D.C., and is the owner of Plaintiff's mortgage. Id. at ¶ 6.

         A. The Foreclosure Action in New Jersey State Court

         This case arises out of a foreclosure dispute that was previously litigated in the Superior Court of New Jersey, Chancery Division. See Mem. of Law in Supp. of BANA's Mot. to Dismiss (“BANA's Mot.”) 2, ECF No. 22-1. In that case, BANA sought foreclosure of Plaintiffs property after she defaulted on her mortgage. Id. at 3. In her answer to BANA's foreclosure complaint, Plaintiff asserted ten affirmative defenses, including unclean hands, fraudulent inducement and fraud in the creation of the mortgage. See Certification of Stephen J. Steinlight (“Steinlight Cert.”), Ex. B at 5-8, ECF No. 22-3.

         In January 2015, BANA moved for summary judgment on the foreclosure action. See id., Ex. C. In her opposition to summary judgment, Plaintiff argued, in pertinent part, that she was not in default because she had entered into and successfully completed a Trial Period Plan (“TPP”) Agreement with BANA under the Home Affordable Modification Program. Plaintiff argued that she made timely payments pursuant to the TPP and that she was, therefore, entitled to a modification of her mortgage and was not in default. See id, Ex. D at 4-5. On February 20, 2015, the court issued an order finding that BANA had standing to foreclose and that Plaintiff was not entitled to a modification because she failed to satisfy the terms of the TPP. See id., Ex. F at 2-3. Plaintiff subsequently filed for reconsideration, which the court rejected. See id., Exs. G, J.

         As a result of the court's order, the matter was returned to the Office of Foreclosure for issuance of a final judgment. For reasons unknown to the Court, however, BANA never pursued a final judgment and none was given. On October 7, 2016, the matter was dismissed without prejudice for failure to prosecute the claim. Certification of Adam Deutsch (“Deutsch Cert.”), Ex. 1, ECF No. 31-1. On or about April 1, 2015, Seterus took over the servicing of Plaintiff s mortgage from BANA. Compl. at ¶ 74.

         B. The Present Litigation

         Plaintiff alleges the following counts:

. Count I: common law fraud against BANA and Fannie Mae, Compl. at ¶¶ 75-85;
. Count II: breach of contract against all Defendants, id. at ¶¶ 86-107;
. Count III: breach of duty of good faith and fair dealing against BANA and Fannie Mae, id. at ¶¶ 108-24;
. Count IV: violation of New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. 56:8- 1(d), against BANA and Fannie Mae, id. at ...

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