United States District Court, D. New Jersey
NICHOLAS E. PURPURA, Plaintiff,
JP MORGAN CHASE, ET AL. Defendants.
Michael Vazquez, U.S.D.J.
case arises from Plaintiffs claims that assignments of his
2005 mortgage loan, as well as his 2008 loan modification,
were unlawful. The Court previously dismissed Plaintiffs
first Complaint without prejudice. Plaintiff Nicholas Purpura
("Plaintiff) then filed an Amended Complaint. D.E. 44.
The present matter comes before the Court on
Defendants' motion to dismiss Plaintiffs Amended
Complaint. D.E. 47. Defendants move to dismiss with
prejudice for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) and for failure to
state a claim pursuant to Rule 12(b)(6). This motion was
decided without oral argument pursuant to Federal Rule of
Civil Procedure 78 and Local Civil Rule 78.1. The Court has
considered the parties' submissions and grants
Defendants' motion to dismiss all counts with prejudice.
8, 2005, Plaintiff executed a Note and Mortgage in
conjunction with a loan from Washington Mutual Bank
("WaMu") in the amount of $633, 750.00 (the
"Loan"). Am. Compl., Ex. II. On September 25,
2008, Chase acquired certain assets and liabilities of WaMu,
including Plaintiffs Loan, from the Federal Deposit Insurance
Corporation ("FDIC"), as receiver for
WaMu. Id. at 18. Plaintiff claims that
Chase has "wrongfully claimed to own 'certain
assets' (including Plaintiffs indebtedness)" because
they were not properly assigned to Chase. Id. at 4.
Specifically, Plaintiff claims that "[g]overnment
records from SEC show the 10-K filings for 'Washington
Mutal, Inc.' . . . listed as having ceased existence on
4/4/2005" and "[WaMu] no longer existed on the date
of Plaintiff s contract." Id. at 12. As such,
according to Plaintiff, "the contract did not legally
exist, because the 'Lender' was a fiction."
Id. at 12.
September 25, 2008, Plaintiffs loan was in default.
Id. at 22. Defendants pinpoint the date as September
1, 2008, when Plaintiff "fail[ed] to make a payment that
became due and owing." Defs. Br. at 2; Sampson Decl. at
¶ 5. As a result, Plaintiff claims that he was
"coerced into signing [a] fraudulent
'modification' [of the mortgage agreement]." Am.
Compl. at 21. Defendants state that as a result of Plaintiff
s default, Chase brought a foreclosure action in state court.
Defs. Br. at 3; Sampson Decl. at ¶ 5. As a resolution to
the case, Plaintiff and Chase executed a Loan Modification
Agreement in July 2010, which took effect on September 1,
2010. Am. Compl., Ex. 12. Plaintiff alleges that, when he was
in default, Chase "coerced Plaintiff, under threat of
eviction, to agree to the further unconscionable terms of the
'modified' loan." Am. Compl. at 5.
concludes that "Chase is a 'stranger to his debt,
' has no agency/capacity/standing to collect or
foreclose, and Plaintiff has been forced to pay a party who
is neither holder or an entity for a holder, with legal right
to his payments." Id. at 25. Plaintiff
indicates that he has "suffered immense physical and
emotional injury from the magnitude of the stress he has been
forced to live under." Id. at 3. Finally,
Plaintiff requests that all relief requested in the original
Complaint be granted. PI. Opp. Br. At 15.
27, 2016, Plaintiff filed his original Complaint. D.E. 1. On
August 23, 2016, Defendants filed a motion to dismiss. D.E.
23. On March 24, 2017, the Court entered an Opinion and Order
("Original Opinion" and "Dismissal
Order") dismissing the Complaint's RICO, False
Claims Act ("FCA"), and Truth in Lending Act
("TILA") claims without prejudice, and dismissing
all remaining claims with prejudice. D.E. 41, 42. Plaintiff was
provided thirty days to file an amended complaint as to the
civil RICO, FCA, and TILA claims. D.E. 41, 42.
April 20, 2017, Plaintiff filed an Amended Complaint. D.E.
44. In the Amended Complaint, Plaintiff asserted the
following counts: (1) a civil claim under the Racketeer
Influenced and Corrupt Organizations Act ("RICO"),
18 USC § 1961, et seq.; (2) a violation of the
New Jersey Consumer Fraud Act (the "NJCFA"),
N.J.S.A. §56:8-1, etseq.; (3) a claim of common
law fraud; and (4) a claim of equitable
2, 2017, Defendants filed a motion to dismiss the Amended
Complaint. D.E. 47. On June 20, 2017, Plaintiff filed
opposition, D.E. 48, to which Defendants replied, D.E. 49.
Plaintiff then filed another brief in opposition on June 27,
2017. D.E. 50. On July 24, 2017, Plaintiff also filed a
"Motion for Judicial Intervention, " D.E. 52, and
Defendants filed opposition on August 7, 2017. D.E. 53.
Lastly, on November 1, 2017, Plaintiff filed a motion to
strike and request for sanctions. D.E. 61. On November 15,
2017, Defendants filed opposition. D.E. 62.
STANDARD OF REVIEW
deciding a Rule 12(b)(1) motion for lack of subject-matter
jurisdiction, a court must first determine whether the party
presents a facial or factual attack because the distinction
determines how the pleading is reviewed. A facial attack
"contests the sufficiency of the complaint because of a
defect on its face, " whereas a factual attack
"asserts that the factual underpinnings of the basis for
jurisdiction fails to comport with the jurisdictional
prerequisites." Elbeco Inc. v. Nat 7 Ret.
Fund, 128 F.Supp.3d 849, 854 (E.D. Pa. 2015) (quoting
Moore v. Angle's List, Inc., 118 F.Supp.3d 802,
806 (E.D. Pa. 2015)). When a party moves to dismiss prior to
answering the complaint, as is the case here, the motion is
generally considered a facial attack. Bellocchio v. New
Jersey Dep't of Envtl. Prot., 16 F.Supp.3d 367,
373-74 (D.N.J. 2014) (citing Cardio-Med. Assocs., Ltd. v.
Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir.
1983)), aff'd, 602 Fed.Appx. 876 (3d Cir. 2015).
Filing a motion to dismiss in lieu of filing an answer
"assert[s] that [P]laintiff s complaint, on its face,
does not allege sufficient [facts] ... to warrant the court
in taking jurisdiction." Cardio-Med. Assocs.,
721 F.2d at 75.
facial attack, "the Court must consider the allegations
of the complaint as true, " much like a Rule 12(b)(6)
motion to dismiss. Bd. of Trs. of Trucking Emps of N
Jersey Welfare Fund, Inc. v. Caliber Auto Transfer,
Inc., No. 09-6447, 2010 WL 2521091, at *8 (D.N.J. June
11, 2010) (quoting Petruska v. Gannon Univ., 462
F.3d 294, 302 (3d Cir. 2006)). The burden is on the Plaintiff
to prove the Court has jurisdiction. Id. (citing
Petruska, 462 F.3d at 302).
III of the Constitution limits the jurisdiction of federal
courts to 'Cases' and 'Controversies.'"
Lance v. Coffinan, 549 U.S. 437, 439 (2007). One key
aspect of this case-or-controversy requirement is standing.
See Id. "The standing inquiry focuses on
whether the party invoking jurisdiction had the requisite
stake in the outcome when the suit was filed."
Constitution Party of Pa., 757 F.3d at 360. To
establish standing, a plaintiff must satisfy a three-part
test, showing: "(1) an 'injury in fact, '
i.e., an actual or imminently threatened injury that
is 'concrete and particularized' to the plaintiff;
(2) causation, i.e., traceability of the injury to
the actions of the defendant; and (3) redressability of the
injury by a favorable decision by the Court."
Nat'l Collegiate Athletic Ass'n v. Gov. of
N.J., 730 F.3d 208, 218 (3d Cir. 2013).
12(b)(6) of the Federal Rules of Civil Procedure permits a
defendant to move to dismiss a count for "failure to
state a claim upon which relief can be granted[.]" To
withstand a motion to dismiss under Rule 12(b)(6), a
plaintiff must allege "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint
is plausible on its face when there is enough 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). Although the plausibility standard "does not
impose a probability requirement, it does require a pleading
to show more than a sheer possibility that a defendant has
acted unlawfully." Connelly v. Lane Const.
Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
quotation marks and citations omitted). As a result, a
plaintiff must "allege sufficient facts to raise a
reasonable expectation that discovery will uncover proof of
[his] claims." Id. at 789.
evaluating the sufficiency of a complaint, a district court
must accept all factual allegations in the complaint as true
and draw all reasonable inferences in favor of the plaintiff.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d
Cir. 2008). A court, however, is "not compelled to
accept unwarranted inferences, unsupported conclusions or
legal conclusions disguised as factual allegations."
Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir.
2007). If, after viewing the allegations in the complaint
most favorable to the plaintiff, it appears that no relief
could be granted under any set of facts consistent with the
allegations, a court may dismiss the complaint for failure to
state a claim. DeFazio v. Leading Edge Recovery
Sols., 2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).
Plaintiff is proceeding pro se, the Court construes
the pleadings liberally and holds him to a less stringent
standard than those filed by attorneys. Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, the
"Court need not ... credit a pro se plaintiffs
'bald assertions' or 'legal
conclusions.'" D'Agostino v. CECOMRDEC,
2010 WL 3719623, at *1 (D.N.J. Sept. 10, 2010).
first argue that the Amended Complaint should be dismissed
with prejudice because it fails to comply with the
Court's Dismissal Order. Defs. Br. at 5. Defendants
contend that the Dismissal Order was narrowly focused,
permitting Plaintiff to only remedy defects with the RICO,
FDCPA, and TILA claims. Id. Alternatively,
Defendants claim that the Amended Complaint should be
dismissed for lack of subject-matter jurisdiction under
Federal Rule 12(b)(1). Id. at 5-6. Finally,
Defendants assert that the Amended Complaint should be
dismissed for failing to state a claim pursuant to Federal
Rule 12(b)(6). Id. at 7-20.
Claims from Plaintiffs Original Complaint
initial matter, in providing the Plaintiff the opportunity to
amend his Complaint as to the FCA, FDCPA, and TILA claims,
the Court stipulated the elements Plaintiff would have to