United States District Court, D. New Jersey
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.
BRIAN R. MARTINOTTI UNITED STATE DISTRICT JUDGE.
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.
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.)
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.)
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.)
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.)
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.
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
(E) notify the defendant that a failure to appear and defend
will result in a default judgment against the defendant for