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Heine v. Commissioner of Department of Community Affairs of State

United States District Court, D. New Jersey

October 10, 2017

ELLEN HEINE, et al., Plaintiffs,


          HON. KEVIN McNULTY, U.S.D.J.

         Defendant 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.


         A. Rule 12(b)(1)

         The 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)).

         A 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).

         The 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.

         The 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.

         B. Rule 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).

         Federal 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 678.

         Where 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).


         Plaintiffs 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").

         This, however, is the first motion brought by defendant JP Morgan Chase Bank, N.A., which had not appeared in the case previously.[1] I therefore review the allegations against the Bank.

         The Bank is named only in Count 7, and is the sole defendant in that Count. The substantive allegations of Count 7 are as follows:

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 mortgage.[2]
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[3] 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 Schildknecht.

(7AC pp. 16-17)

         Count 7 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 foreclosure;
(d) such other and further relief as the Court sees fit.


         I am obligated to first consider whether this Court possesses subject matter jurisdiction. I then proceed to ...

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