United States District Court, D. New Jersey
ARTHUR B. CAPONEGRO, Plaintiff,
THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, FIRST NATIONAL BANK OF LAYTON, AND JOHN DOES 1-10, Defendants.
plaintiff, Arthur B. Caponegro ("Caponegro"),
brought this action against the defendants, the United States
Department of Housing and Urban Development ("HUD")
and First National Bank of Layton ("FNBL"), in
connection with a "reverse mortgage" transaction that
Caponegro entered into with FNBL. On August 16, 2016,
Caponegro filed a four-count amended complaint (ECF no. 33,
referred to hereinafter as the "Complaint" and
cited as "Compl."). Only Counts 1 and 4 appear to
assert claims against FNBL. Count 1 is a claim for breach of
contract, and Count 4 is a claim for negligence. In Count 1,
the Complaint also presents allegations that sound in fraud,
alleging that FNBL made misrepresentations and that it
falsified documents and forged Caponegro's signature. Now
before the Court is FNBL's motion, pursuant to
Fed.R.Civ.P. 12(b)(6), to dismiss the Complaint for failure
to state a claim.
reasons stated below, FNBL's motion to dismiss (ECF no.
41) is GRANTED.
Standard on a Motion to Dismiss
has moved to dismiss the Complaint for failure to state a
claim, pursuant to Fed.R.Civ.P. 12(b)(6). Rule 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 defendant, as 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). In
deciding a Rule 12(b)(6) motion, a court must take the
allegations of the complaint as true and draw reasonable
inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008) (traditional "reasonable inferences"
principle not undermined by Twombly, see infra).
Rule of Civil Procedure 8(a) does not require that a
complaint contain detailed factual allegations. Nevertheless,
"a plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do."
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Thus, the complaint's factual allegations must be
sufficient to raise a plaintiffs right to relief above a
speculative level, so that a claim is "plausible on its
face." Id. at 570; see also Umland v.
PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met "when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.
at 556). While "[t]he plausibility standard is not akin
to a 'probability requirement'... it asks for more
than a sheer possibility." Iqbal, 556 U.S. at
a plaintiff alleging fraud or mistake must meet a heightened
pleading standard under Federal Rule of Civil Procedure 9(b).
Under Rule 9(b), "[i]n alleging fraud or mistake, a
party must state with particularity the
circumstances constituting fraud or mistake."
Fed.R.Civ.P. 9(b) (emphasis added). As the Third Circuit has
explained, "[a] plaintiff alleging fraud must therefore
support its allegations with all of the essential factual
background that would accompany the first paragraph of any
newspaper story-that is, the who, what, when, where and how
of the events at issue." U.S. ex rel. Moore &
Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294,
307 (3d Cir. 2016) (citing In re Rockefeller Ctr. Props.,
Inc. Securities Litig., 311 F.3d 198, 217 (3d Cir.
2002)) (citation and quotation marks omitted). In other
words, a plaintiff may satisfy this requirement by pleading
"the date, time and place" of the alleged fraud or
deception, or by "otherwise inject[ing] precision or
some measure of substantiation" into the allegation.
Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir.
2007) (citing hum v. Bank of Am., 361 F.3d 217, 224
(3d Cir. 2004)). Additionally, to survive a motion to
dismiss, plaintiffs must also allege "who made a
misrepresentation to whom and the general content of the
misrepresentation." Gray v. Bayer Corp.,
No.Civ.A.08-4716, 2010 WL 1375329, at *3 (D.N.J. Mar. 31,
2010) (citing hum, 361 F.3d at 224).
heightened specificity required by Rule 9(b) extends to the
pleading of all claims that "sound in fraud."
See Giercyk v. Nat'l Union Fire Ins. Co. of
Pittsburgh, No. 13-6272, 2015 WL 7871165, at *2 (D.N.J.
Dec. 4, 2015); Mladenov v. Wegmans Food Markets,
Inc., 124 F.Supp.3d 360, 372 (D.N.J. 2015). This
includes Caponegro's claims alleging misrepresentation
and falsification of documents. See Travelers Indem. Co.
v. Cephalon, Inc., 620 F.App'x 82, 85, n.3 (3d Cir.
2015) (affirming Rule 9(b) dismissal of claims for
intentional misrepresentation, negligent misrepresentation,
and unjust enrichment).
plaintiff is proceeding pro se, the complaint is
"to be liberally construed, " and, "however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers." Erickson
v. Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless,
"pro se litigants still must allege sufficient
facts in their complaints to support a claim." Mala
v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013). "While a litigant's pro se status requires a
court to construe the allegations in the complaint liberally,
a litigant is not absolved from complying with
Twombly and the federal pleading requirements merely
because s/he proceeds pro se." Thakar v. Tan,
372 F.App'x 325, 328 (3d Cir. 2010) (citation omitted).
Pro se plaintiffs are also not exempt from meeting
the heightened pleading requirements of Rule 9(b) when
alleging claims that sound in fraud. See Kowalsky v.
Deutsche Bank Nat'l Trust Co., No. 14-07856
(CCC)(JBC), 2015 WL 5770523, at *9 (D.N.J. Sept. 30, 2015).
time Caponegro filed the Complaint, he was represented by
counsel, Kenneth C. Marano, Esq., but by the time he filed
his opposition to FNBL's motion to dismiss, he was
proceeding pro se. As of May 11, 2017, Caponegro is once
again represented by counsel, Toni Belford Damiano, Esq.
(Notice of Appearance, ECF no. 57) Because Caponegro was
represented by counsel at the time he filed the Complaint,
the Complaint is not entitled to the more forgiving standards
applied to pro se pleadings. However, this makes little
difference in this case because, even if construed liberally,
the Complaint fails to state a claim.
purposes of this motion to dismiss, the allegations of the
Complaint are assumed to be true. Although the allegations
suffer from insufficient clarity, I have attempted to make
sense of them.
Complaint alleges that Caponegro owns and resides at 513
Winterburn Grove, Cliff side Park, New Jersey. (Compl. ¶
7) On or about July 23, 2012, he entered into a "reverse
mortgage" transaction with FNBL in the amount of $400,
500. (See Id. ¶¶ 61-65) Caponegro never
received financial counseling regarding his reverse mortgage,
which he alleges was a failure to meet the requirements of 12
U.S.C. § 1715z-20. As a result, "Defendants breached
the contract entered into by Plaintiff." (Id.
¶ 63) Caponegro relied upon "Defendant's
misrepresentation" to his detriment by not having been
advised about the nature of the loan and its consequences to
his home ownership. (Id. ¶ 64)
alleges that FNBL's sale of the ownership interest in the
loan to Wells Fargo Bank, N.A., "on or before the Trust
Closing Date of August 30, 2012, . . . constitute[d] a
Breach-separation of the Note and Mortgage."
(Id. ¶ 66) Allegedly, "Defendant breached
its obligations under the contract with Plaintiff by
splitting the Note and Mortgage, a condition precedent . . .
thereby voiding the contract." (Id. ¶ 68)
further alleges that "Defendant falsified the original
document, and forged Plaintiffs signature encumbering the
property for the amount of $862, 500 at ¶ 2.748%
interest rate." (Id. ¶ 67)
with a general observation. At many points in the Complaint,
references to the defendants are ambiguous. The Complaint
sometimes refers to "Defendant" or
"Defendants, " without further identifying which
of the two named defendants is intended. It is not always
possible to confidently infer against which of the defendants
an allegation is directed.
plaintiff must "specify which defendants performed which
acts." Zuniga v. Am. Home Mortg., No.
14-CV-2973 (KM), 2016 WL 886214, at *2 (D.N.J. Mar. 7, 2016);
see also Galicki v. New Jersey, No. 14-169 (JLL),
2015 WL 3970297, at *2 (D.N.J. June 29, 2015) (Rule 8 is not
satisfied where a complaint "provide[s] only conclusory
allegations against Defendants as a group"); Triple
T Constr., L.L.C. v. Township of W. Milford, No. 14-2522
(JLL), 2014 WL 2624764, at *4 (D.N.J. June 11, 2014) (Rule 8
is not satisfied where a complaint "lump[ed] all
Defendants together, failing to put Defendants on notice of
their own alleged wrongdoing").
Caponegro chooses to file an amended complaint, he must
identify more clearly which defendants are alleged to be
responsible for each action and against which defendants each
count is asserted.
proceed to analyze the sufficiency of the allegations in
Counts 1 and 4.
Fraud/ Breach of ...