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Wright v. Deutsche Bank National Trust Co.

United States District Court, D. New Jersey

January 25, 2018

DWIGHT L. WRIGHT, Plaintiff,
DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for the Registered Holders of Morgan Stanley ABS Capital Inc. Trust 2007-HE& Mortgage Pass-Through Certificates, Series 2007 HE7, OCWEN LOAN SERVICING, LLC, and NEW CENTURY MORTGAGE, Defendants.



         THIS MATTER was opened to the Court on a Motion to Dismiss filed by Defendants Ocwen Loan Servicing, LLC (“Ocwen”) and Deutsche Bank National Trust Company (“Deutsche Bank”), as trustee for the registered holders of Morgan Stanley ABS Capital I Inc. Trust 2007-HE7 Mortgage Pass-Through Certificates, Series 2007-HE7 (“Defendants”), pursuant to Federal Rules of Civil Procedure 12(b)(2), (4), (5) and (6). (ECF No. 10-1.) For the reasons set forth below, the Court finds it lacks jurisdiction over Defendants and Defendants' Motion to Dismiss is GRANTED.

         This dispute arises out of a foreclosure against Dwight L. Wright's (“Wright”) property in Morganville, New Jersey (“Property”). Wright alleges he executed a promissory note (the “Note”) in favor of Premier Bank, in connection with a mortgage loan (the Mortgage”) secured by his Property. (ECF No. 5 ¶ 1.) He further contends, through various mergers, bankruptcies, and transfers of the Note, Deutsche Bank believes itself to be the owner of the Note despite there being no evidence any such transferred occurred. (Id. ¶¶ 2-8.) He alleges Deutsch Bank never validly acquired an interest in the Note and lacked standing to foreclose on his Property. (Id. ¶¶ 7-14.) Wright further attacks the validity of the trust for which Deutsche Bank serves as trustee, the assignment of the Mortgage, and a loan modification. (Id. ¶¶ 15-25.)

         Based on these allegations, on December 4, 2016, Wright filed a Complaint against Deutsche Bank, Ocwen, and New Century Mortgage and an application to proceed in forma pauperis (“IFP”). (Compl. (ECF No. 1).) On January 9, 2017, the Court denied his IFP application without prejudice. (ECF No. 2.) On February 5, 2017, Wright filed a Motion to Reopen his case and proceed IFP, which was denied on February 6, 2017. (ECF No. 4.)

         On February 20, 2017, Wright filed an Amended Complaint and paid the filing fee. (Am. Compl. (ECF No. 5).) His Amended Complaint brings seven counts against all three defendants: (1) mortgage servicing fraud; (2) violation of the regulation and the Real Estate Settlement Procedures Act; (3) theft, conversion, fraud, duress, and undue influence; (4) violations of the Truth-in-Lending Act; (5) violations of the New Jersey Consumer Fraud Act; (6) breach of contract; and (7) unjust enrichment. (Id.) On May 18, 2017, Wright's attorney submitted a certification certifying he served a true and correct copy of Wright's Amended Complaint on all defendants. (ECF No. 6.)

         On May 22, 2017, Wright filed a request for default against all defendants. (ECF No. 8.) The Clerk's office denied the request “because the Defendants were not properly served pursuant to federal rule 4m, summons were never issued.” (Clerk's Quality Control Message, dated May 24, 2017.) The Clerk's office also instructed Wright to file a letter requesting the summons to be issued as to the Amended Complaint. (Id.) Wright has yet to request summons to be issued as to his Amended Complaint. On June 23, 2017, Defendants filed a Motion to Dismiss for lack of jurisdiction and for failure to state a claim. (ECF No. 10.) Wright opposes the Motion, but does not address the jurisdictional issues. (See ECF No. 11.)

         “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirements of service of summons must be satisfied.” Omni Capital International v. Rudolf Wolff and Co., Ltd., 484 U.S. 97, 104 (1987). Service of a summons is the procedure by which a court having venue and subject matter jurisdiction asserts jurisdiction over the defendant. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45 (1946)). Service of process in a federal action is governed by Federal Rule of Civil Procedure 4.

         Rule 4(a)(1) prescribes the form of the summons:

A summons must:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff's attorney or-if unrepresented-of the plaintiff;
(D) state the time within which the defendant must appear and defend;
(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the ...

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