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Cole v. Wells Fargo Bank, N.A.

United States District Court, D. New Jersey

January 22, 2018

FRANCINE COLE, both individual and as Co-Administrator for the Estate of Annie L. Cole, Plaintiff,
v.
WELLS FARGO BANK, N.A., GWENDOLYN COLE-HOOVER, and KEVIN TODD JOHNSON,, Defendants.

          OPINION

          KEVIN MCNULTY, U.S.D.J.

         Now before the Court is the Report and Recommendation ("R&R", ECF no. 121) of Magistrate Judge Michael A. Hammer that the action be dismissed for lack of subject matter jurisdiction, and plaintiff Francine Cole's objection to the R&R (ECF no. 122). For the reasons set forth below, the R&R is adopted and affirmed, and the action is dismissed for lack of subject matter jurisdiction.

         I. BACKGROUND

         This action grew out of a dispute between Francine Cole ("Cole") and her sister, defendant Gwendolyn Cole-Hoover ("Cole-Hoover"), regarding the sisters' inheritance from their mother. The plaintiff and defendant Hoover are co-administrators of their late mother's estate. (Complaint, Dkt. No. 1, ¶¶7-8) The estate includes a home in Morristown, New Jersey (the "Morristown" property). On November 22, 2006, Cole and Cole-Hoover took out a $125, 000 home equity line of credit (the "credit line") on the Morristown home with defendant Wells Fargo Bank, N.A. ("Wells Fargo"). The credit line was jointly held by Cole and Cole-Hoover; both could freely withdraw funds.

         In 2009, Cole-Hoover began to take issue with how Cole had been spending the credit line funds. Sometime in October 2010, Cole alleges, Cole-Hoover granted power of attorney to her nephew, defendant Kevin Johnson ("Johnson"). Pursuant to that authority, Johnson withdrew the remaining balance of the credit line, which was approximately $62, 000.

         Cole instituted this action against Cole-Hoover, Wells Fargo, and Johnson on March 30, 2012. The basis of her Complaint was that Cole-Hoover and Johnson contrived to remove the credit line funds from the Wells Fargo account without authorization, and that Wells Fargo failed to stop them.

         The Complaint, which contained ten counts, all asserting state-law causes of action, invoked this court's diversity jurisdiction under 28 U.S.C. § 1332(a). Then-Judge Faith S. Hochberg, [1] to whom the case was assigned, dismissed the case for lack of jurisdiction because Cole and Johnson were both New Jersey citizens. (ECF no. 8)

         On May 10, 2012, Cole filed an Amended Complaint. (Dkt. No. 14) The Amended Complaint continued to assert ten state-law claims, but added Count 11, asserted against defendant Wells Fargo only. Count 11 compounded claims under both the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2605 and the Truth in Lending Act ("TILA"), 15 U.S.C. 1666(a).

         Eventually defendant Wells Fargo moved for summary judgment. I granted that motion by Order (ECF no. 107) and Opinion ("Op.", ECF no. 106). I determined that there was no evidence sufficient to raise a triable issue as to any of the state-law claims against Wells Fargo. Likewise, the evidence set forth neither a cause of action nor resulting damages under RESPA or TILA.

         Jurisdictionally this dismissal restored the status quo ante. The sole federal-law claim (Count 11) having been dismissed, this was once again a state law action between the plaintiff, Cole, and die defendants, Cole-Hoover and Johnson. As previously ruled, there is no basis for this Court to assert its diversity jurisdiction over that action. (ECF no. 8)

         Magistrate Judge Michael A. Hammer filed an order to show cause why the case should not be dismissed for lack of subject matter jurisdiction. (ECF no. 109) Plaintiff Cole responded. (ECF no. 120)

         On January 4, 2017, Magistrate Judge Hammer filed a Report and Recommendation ("R&R") that the action be dismissed for lack of subject matter jurisdiction. Plaintiff Cole responded with a filed objection. (ECF no. 122)

         II. DISCUSSION

         My standard of review of a Magistrate Judge's recommendation of dismissal of a case is de novo. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); Loc. R. 72.1c(2).[2] I have reviewed the record of the case and examined anew the Magistrate Judge's decision. Finding myself in agreement with Judge Hammer's well-reasoned ...


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