United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
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.
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.
The Foreclosure Action in New Jersey State Court
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.
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,
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.
The Present Litigation
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