United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
plaintiff, Anne Marie Marchi, pro se, is or was the
owner of a property in Riverdale, New Jersey. Her First
Amended Complaint ("1AC", ECF no. 7) asserts a claim
under the Real Estate Settlement Procedures Act
("RESPA"), 12 U.S.C. § 2605 and Regulation X,
12 C.F.R. part 1024, that the defendants failed to give
proper consideration to her loss mitigation application
before scheduling a foreclosure sale. Now before the court is
the motion (ECF no. 9) of defendants Specialized Loan
Servicing Company ("SLSC") and Mortgage Electronic
Registration Systems, Inc. ("MERS") to dismiss the
First Amended Complaint for lack of jurisdiction and failure
to state a claim. See Fed. R. Civ. P. 12(b)(1) &
12(b)(6). For the reasons expressed herein, the Rule 12(b)(6)
component of the motion will be granted.
State mortgage foreclosure and adjournment of Sheriffs
September 10, 2007, Ms. Marchi executed a promissory note for
$140, 000, secured by a mortgage on her property at 773
Canella Way, Riverdale, New Jersey. (1AC ¶ 23;
see copy of Mortgage, ECF no. 9-4 at 2). The lender
was the now-defunct Countrywide Home Loans, FSB. On the
mortgage, defendant MERS was the designated nominee for
Countrywide, its successors and assigns. The loan was
thereafter transferred to Nationstar Mortgage, LLC. (1AC
¶¶ 24-25). Defendant SLSC is the loan servicer.
(1AC ¶ 16).
loan went into default. On August 16, 2017, Nationstar
Mortgage obtained a final judgment of foreclosure in the
amount of $226, 286.17 in the Superior Court of New Jersey,
Chancery Division, Morris County. (Docket No. F-025125-14.
ECF no. 9-4 at 20). A Writ of Execution issued the same day.
(ECF no. 9-4 at 22).
Marchi apparently received an adjournment of the date of a
Sheriffs Sale that was scheduled for January, 2018. On March
20, 2018, she applied to the state court for a further
extension. (ECF no. 9-4 at 28-29). The state court granted
the application. The Sheriffs Sale, then scheduled for March
29, 2018, was adjourned until July 5, 2018. (ECF no. 9-4 at
Allegations of the Complaint
First Amended Complaint contains a number of generalized
allegations. Factually, however, it is focused on a single
grievance. The defendants, it alleges, violated RESPA, 12
U.S.C. § 2605, and Regulation X, 12 C.F.R. part 1024, in
the months leading up to a scheduled Sheriffs Sale.
Mortgage and SLSC are alleged to be loan
"servicers" for purposes of RESPA and Regulation X.
(1AC ¶ 37). Regulation X imposes certain obligations on
a servicer who receives a completed "loss mitigation
application" from a borrower. (1AC ¶¶ 38, 39).
For example, if a servicer receives a loss mitigation
application at least 45 days before a foreclosure sale, it
must send an acknowledgement letter stating that the
application is complete or requesting additional information.
(1AC ¶ 40). When a loss mitigation application is
complete at least 37 days before a foreclosure sale, the
servicer must evaluate it and provide the borrower with
written notice within 30 days stating whether it will offer
the borrower any loss mitigation options. (1AC ¶ 42). In
the meantime, the servicer is barred from taking certain
actions, including "conducting a foreclosure sale."
(1AC ¶ 43).
before January 10, 2014,  Nationstar and SLSC received loss
mitigation applications from Ms. Marchi. (1AC ¶ 44).
SLSC nevertheless scheduled foreclosure sales for February 1,
2018 and March 29, 2018. (1AC ¶ 45). Between those two
dates, on February 12, 2018, Ms. Marchi submitted a complete
loss mitigation application and was contingently approved.
The Sheriffs Sale was nevertheless scheduled for March 29,
2018, and was postponed "[o]nly through the efforts of
the Plaintiff." (1AC ¶¶ 47, 49).
actions allegedly violated several subsections of section 6
of RESPA, as well as Regulation X. Ms. Marchi sues under
Section 6 of RESPA, 12 U.S.C. § 2605(f), which provides
Damages and costs Whoever fails to comply
with any provision of this section shall be liable to the
borrower for each such failure in the following amounts:
Individuals In the case of any action by an
individual, an amount equal to the sum of-
actual damages to the borrower as a result of the failure;
additional damages, as the court may allow, in the case of a
pattern or practice of noncompliance with the requirements of
this section, in an amount not to exceed $2, 000.
STANDARD ON MOTION TO DISMISS
12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief
can be granted. The defendants, as the moving parties, bear
the burden of showing that no claim has been stated.
Animal Science Prods., Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the
purposes of a motion to dismiss, the facts alleged in the
complaint are accepted as true and all reasonable inferences
are drawn in favor of the plaintiff. N.J. Carpenters
& the Trustees Thereof v. Tishman Const Corp. of
N.J., 760 F.3d 297, 302 (3d Cir. 2014).
Civ. P. 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, "a
plaintiffs obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint's factual allegations must be sufficient to
raise a plaintiffs right to relief above a speculative level,
so that a claim is "plausible on its face."
Id. at 570; see also W. Run Student Housing
Assocs., LLC v. Huntington Nat Bank, 712 F.3d 165, 169
(3d Cir. 2013). That facial-plausibility standard is met
"when the plaintiff pleads 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) (citing
Twombly, 550 U.S. at 556). While "[t]he
plausibility standard is not akin to a 'probability
requirement'. . . it asks for more than a sheer
possibility." Iqbal, 556 U.S. at 678.
12(c) motion for judgment on the pleadings is often
indistinguishable from a motion to dismiss, except that it is
made after the filing of a responsive pleading. Fed.R.Civ.P.
12(h)(2) "provides that a defense of failure to state a
claim upon which relief can be granted may also be made by a
motion for judgment on the pleadings." Turbe v.
Gov't of Virgin Islands, 938 F.2d 426, 428 (3d Cir.
1991). Accordingly, when a Rule 12(c) motion asserts that the
complaint fails to state a claim, the familiar Rule 12(b)(6)
standard applies, making due allowance, of course, for any
factual allegations that are admitted in the responsive
pleading. Thus, the moving party bears the burden of showing
that no claim has been stated. Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005).
general, review is confined to the allegations in the
pleadings. I am permitted, however, to consider
"extraneous documents that are referred to in the
complaint or documents on which the claims in the complaint
are based" without converting this motion into one for
summary judgment. Morano v. BMW of N. Am., LLC, 928
F.Supp.2d 826, 830 (D.N.J. 2013) (citing In re Burlington
Coat Factory Sec. Litig.,114 F.3d 1410, ...