United States District Court, D. New Jersey
FRANCINE COLE, both individual and as Co-Administrator for the Estate of Annie L. Cole, Plaintiff,
WELLS FARGO BANK, N.A., GWENDOLYN COLE-HOOVER, and KEVIN TODD JOHNSON, Defendants.
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
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 coadministrators 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.
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.
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.
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,  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)
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.
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.
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 the 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)
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
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)
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). 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