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Higgins v. Wells Fargo Bank, N.A.

United States District Court, D. New Jersey

March 21, 2017

WELLS FARGO BANK, N.A., et al.. Defendant.


          CLAIRE C. CECCHI, U.S.D.J.


         This matter comes before the Court upon motion of Defendants Wells Fargo Bank N.A. ("Wells Fargo") and Select Portfolio Servicing, Inc. ("SPS") (collectively "Moving Defendants") to dismiss pro se Plaintiff Javon Higgins's ("Plaintiff) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 35. Plaintiff opposes the motion. ECF No. 41. Also before the Court are Plaintiffs motions to restore electricity, for sanctions pursuant to Federal Rule of Civil Procedure 11, to join Milstead and Associates, LLC ("Milstead") as a defendant, and for preliminary injunctive relief. ECF Nos. 36, 38, 45, 47. Moving Defendants opposed the motions to restore electricity, for sanctions, and for preliminary injunctive relief. ECF No. 39, 48. No oral argument was heard. See Fed.R.Civ.P. 78. For the reasons set forth below, Moving Defendants' motion is granted, claims against the remaining Defendants[1] are dismissed, and Plaintiffs motions are denied.


         Plaintiff Javan Higgins is a resident of the property located at 207 Heywood Ave, Orange, New Jersey (the "Property"). Fourth Amended Complaint[2] ("Compl."), ECF No. 34, at l.[3]Plaintiffs former girlfriend, Anne Marie Ward, was the owner of the Property and executed a mortgage on the Property in 2005. Brief in Support of Motion to Dismiss Plaintiffs Fourth Amended Complaint ("Def Mot."), ECF No. 35 at 2.[4] The Complaint states Plaintiff and Ms. Ward executed a lease with an option to buy and a quitclaim deed, giving Plaintiff and his company an interest in the Property. Compl. ¶ 6.

         A default judgment in a foreclosure action was entered against Ms. Ward on June 16, 2008. Def. Mot. at 2. On March 6, 2009, following a Sheriffs sale, a Sheriffs Deed was delivered to Defendant Wells Fargo, as Trustee, on behalf of the Certificate holders of Secured Asset Backed Receivables LLC Trust 2005-FR3, Mortgage Pass-Through Certificates, Series 2005-FR3 (the "Trust"). Def. Mot. at 1, Ex. 2.[5] SPS is the loan servicer of the Trust. Def. Mot. at 2. Despite this sale, Plaintiff has remained on the property. Def. Mot. at 3.

         Plaintiff filed eight separate bankruptcy petitions between 2009 and 2015. Def. Mot. At 5. Plaintiff also filed his first federal complaint regarding the foreclosure action in this district in 2013. See Higgins v. Milsted & Associates. LLC. No. 14-cv-5917-MCA-LDW (D.N.J. May 19, 2016). Judge Madeline Cox Arleo dismissed that action with prejudice in May 2016. See Id. ECF No. 12.

         Plaintiff initiated this action against Moving Defendants on February 24, 2015, alleging Defendant Wells Fargo failed to provide electricity to the Property. ECF No. 1. Additionally, Plaintiff filed a state court action, docketed in the Superior Court of New Jersey, Essex County, at Case No. DC-3526-15 (the "State Action"). Def. Mot. at 3. Plaintiff filed his First Amended Complaint on June 5, 2015, in which he named the Municipal Defendants and Milstead, and his Second Amended Complaint on July 6, 2015. ECF Nos. 12, 15.

         In July and August 2015, Moving Defendants and Municipal Defendants filed independent motions to dismiss the Second Amended Complaint. ECF Nos. 16, 19. On September 29, 2015 Plaintiff filed a Motion for Leave to File an Amended Complaint, to which he attached his proposed Third Amended Complaint. ECF No. 20. The Court granted Plaintiffs motion on February 29, 2016, and denied Defendants' pending motions to dismiss as moot. ECF No. 26. Plaintiff sought an extension of time to file with Judge Mark Falk, and filed the Fourth Amended Complaint ("the Complaint") on April 6, 2016. ECF Nos. 31, 34.

         Defendant Wells Fargo brought an eviction action against Plaintiff in Landlord Tenant Court for nonpayment in 2015. Def. Mot. at 5. That action was stayed and dismissed without prejudice because of Plaintiff s multiple bankruptcy filings. Id. Movants filed a second eviction action on December 17, 2015. Id. The second eviction action proceeded to trial on March 7, 2016 in the Superior Court of New Jersey, Essex County. See Id. at Ex. 5. During this proceeding, the court granted possession of the Property to Defendant Wells Fargo. Id. at 27.

         On March 3, 2016, Plaintiff filed a Motion to Stay in this Court, and on March 15, 2016, he filed a Motion for an Order to Show Cause. ECF Nos. 27, 29. On March 31, 2016, this Court denied both of Plaintiff s motions. ECF No. 33. On April 28, 2016, Moving Defendants filed the instant motion to dismiss. Municipal Defendants and Milstead have not moved as to Plaintiffs Fourth Amended Complaint.


         A. Dismissal Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6)

         For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), it "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal. 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly. 550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. Cnty. of Allegheny. 515 F.3d 224, 234 (3d Cir. 2008). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly. 550 U.S. at 555. "A pleading that offers labels and conclusions will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Iqbal, 556 U.S. at 678 (internal citations omitted).

         B. Liberal Pleading Standard for Pro Se Litigants

         Because Plaintiff is a. pro se litigant, his filings are entitled to a liberal construction. See Dluhos v. Strasbere. 321 F.3d 365, 369 (3d Cir. 2003). A pro se litigant's complaint is held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner. 404 U.S. 519, 520-21 (1972). This Court therefore has a special obligation to discern both the nature of the relief and the appropriate law to govern his request. Id. Courts have a duty to construe pleadings liberally and apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name. Mala v. Crown Bay Marina. Inc.. 704 F.3d 239, 244 (3d Cir. 2013); Dluhos v. Strasberg. 321 F.3d 365, 369 (3d Cir. 2003); Higgins v. Bever. 293 F.3d 683, 688 (3d Cir. 2002). A pro se complaint "can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Estelle v. Gamble. 429 U.S. 97, 106 (1976) (citing Haines. 404 U.S. at 520-21).

         IV. D ...

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