United States District Court, D. New Jersey
KEVIN McNULTY, U.S.D.J.
JPMorgan Chase Bank, N.A. (the "Bank") holds a
mortgage on the properties of two of the plaintiffs, Unita
Peri-Okonny and Ellen Heine. The Bank is named only in Count
7 of the Seventh Amended Complaint ("7AC", ECF no.
81). Now before the Court is the Bank's motion (ECF no.
109) to dismiss the Seventh Amended Complaint for lack of
jurisdiction and failure to state a claim. See Fed.
R. Civ. P. 12(b)(1), 12(b)(6). For the reasons stated herein,
the Bank's motion to dismiss will be granted.
Bank's motion seeks, in part, to dismiss the complaint
for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1). Rule
12(b)(1) challenges may be either facial or factual attacks.
Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99,
105 (3d Cir. 2015) (citing Common Cause of Penn. v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009)).
"In reviewing a facial attack, the court must only
consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff." Id. (citing
Gould Elecs. Inc. v. United States, 220 F.3d 169,
176 (3d Cir. 2000)). It "review[s] only whether the
allegations on the face of the complaint, taken as true,
allege facts sufficient to invoke the jurisdiction of the
district court." Common Cause of Perm. v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (quoting
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181,
188 (3d Cir. 2006)).
factual attack, on the other hand, permits the Court to
consider and weigh evidence extrinsic to the pleadings.
Gould Elecs. Inc. v. United States, 220 F.3d 169,
178 (3d Cir. 2000), holding modified on other grounds by
Simon v. United States, 341 F.3d 193 (3d Cir. 2003).
Such a factual attack "does not provide plaintiffs the
procedural safeguards of Rule 12(b)(6), such as assuming the
truth of the plaintiffs allegations." CNA v. United
States, 535 F.3d 132, 144 (3d Cir. 2008).
Rule 12(b)(1) component of the Bank's motion, as filed,
relies only on the Complaint and documents properly
considered on a Rule 12(b)(6) motion to dismiss. It would
therefore be treated as a facial challenge.
plaintiffs' response, however, makes factual assertions
extrinsic to the allegations of the Complaint. The Bank's
reply suggests that those facts suggest a lack of Article III
standing. I consider this as an alternative basis for
dismissal, and to that limited extent, I will treat the Rule
12(b)(1) motion as a factual challenge.
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).
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."
Bell Atl 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
the plaintiffs are 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 Fed.Appx. 325, 328 (3d Cir. 2010) (citation omitted).
COUNT 7 OF THE SEVENTH AMENDED COMPLAINT
claim, inter alia, that the DCA improperly enforced
fire codes, leading to, inter alia, condemnation of
properties and the impairment of the plaintiffs' ability
to make their mortgage payments. This complaint is now in its
seventh iteration, and I have written more than one opinion
in this case. Thus I will not review the facts and
allegations at length. I assume familiarity with my prior
Opinion ("Op.", ECF no. 97) and Order (ECF no. 98)
granting the most recent motion to dismiss filed by the
Department of Community Affairs of the State of New Jersey
(the "DCA"), by its Commissioner. Briefly, that
Opinion (in conjunction with earlier rulings) resulted in
dismissal of all claims against DCA except a claim for
injunctive relief under 42 U.S.C. § 1983 and the Fair
Housing Act ("FHA").
however, is the first motion brought by defendant JP Morgan
Chase Bank, N.A., which had not appeared in the case
previously. I therefore review the allegations against
Bank is named only in Count 7, and is the sole defendant in
that Count. The substantive allegations of Count 7 are as
1. Plaintiff repeats the allegations of the First, Second,
Third Fourth, Fifth and Sixth Counts as if they were again
set forth herein.
2. JP Morgan Chase Bank N.A. holds a mortgage to the homes
owned by both Unita Peri-Okonny and Ellen Heine.
3. JP Morgan Chase Bank, N.A. received a judgment against
Unita Peri-Okonny for almost $400, 000 pursuant to filing a
foreclosure. If the Bank is allowed to sell the property at a
sheriffs sale, Unita will have lost her entire investment and
she will receive a bill for the deficiency. The actions by
the DCA and their agents have violated the one to four family
rider on the property.
4. JP Morgan Chase Bank proceeded in foreclosure pursuant to
an amended notice of intent to foreclose which was approved
in the state Courts. Unita Peri-Okonny motioned in the State
Court to give notification to the JP Morgan Chase Bank, NA
that the unfortunate circumstances of her property were due
to the actions of the state and the municipality. However,
the Court ruled against her and allowed the matter to proceed
to Final Judgment.
5. The Court's procedures in Foreclosure are designed for
properties that are mortgaged but that are still able to be
used. The problems created by the workings of the DCA that
are negative to properties such as Unita Peri-Okonny's
are difficult to factor into the foreclosure process.
6. The Banks representatives certify that they have completed
a diligent inquiry regarding the pleadings in foreclosure
with reference to the property. However, the bank's
representative that spoke with Unita had no notations in the
file regarding the problems with the demolished home on die
property and the continuation of property taxes for die home.
7. Unita Peri-Okonny contacts die Chase loan office to give
the information regarding die occurrences in New Brunswick
that had caused the destruction of her home. The Bank's
office was not aware of die information that Unita
Peri-Okonny gave diem. They were paying taxes for a home that
was no longer on die property. Unita expressed an interest to
rebuild die home and said that she had been unable to get the
cooperation from either the bank or the municipality to be
able to rebuild. The bank represented that they would be
willing to work with Ms. Peri-Okonny to try to create a means
toward the resolution of her problems regarding the property.
8. Ellen Heine's Garfield property has a mortgage from JP
Morgan Chase Bank, N.A. She is unable to use the property and
to collect any rent for die use of die property. This is die
result of die actions of the DCA and their agents.
Heine's property could go into foreclosure if die closure
continues. The allegations of die DCA have violated die one
to four family rider that is recorded with die
9. The posting of die DCA that one and two family owner
occupied dwelling are exempted from all of die NJAC codes in
5.70-1 are the reason why die actions of the DCA
are financially negative and improper with reference to die
homes of Unita Peri-Okonny, Ellen Heine, and Ann
(7AC pp. 16-17)
seeks the following relief, all of it injunctive:
(a) an injunction to stay all proceedings or future
proceedings in foreclosure;
(b) to prevent a sheriffs sale of Peri-Okonny's property
pending resolution of this action;
(c) to restrain the Bank from "negative credit
reporting" based on the missed mortgage payments or
(d) such other and further relief as the Court sees fit.
obligated to first consider whether this Court possesses
subject matter jurisdiction. I then proceed to ...