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Lopaz v. Stern & Eisenberg, P.C.

United States District Court, D. New Jersey, Camden Vicinage

November 20, 2018

SANDRA LOPAZ, Plaintiff,
v.
STERN & EISENBERG, P.C. and RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Defendants.

          SANDRA LOPAZ, pro se.

          STERN & EISENBERG, P.C. By: Evan Barenbaum, Esq., Attorneys for Defendants

          OPINION [Docket No. 10]

          RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE

         Pro se plaintiff, Sandra Lopaz, brings this suit alleging that Defendants committed a fraud upon the court when they obtained a judgment of foreclosure upon Lopaz's property based upon allegedly false evidence. The Amended Complaint asserts the following claims: (1) violation of the Fair Debt Collection Practices Act, “FDCPA, ” 15 U.S.C. § 1692 et seq., (2) violation of the New Jersey Consumer Fraud Act, “NJCFA, ” N.J.S.A. § 56:8-1 et seq. (3) “fraudulent concealment / spoliation”, and (4) fraud.[1] Defendants bring the instant Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6) seeking dismissal of this suit. For the reasons stated herein, the motion will be granted.

         I. FACTUAL BACKGROUND

         The Amended Complaint alleges the following facts. “On January 11, 2016, [Defendant Stern & Eisenberg] filed a complaint for foreclosure” on behalf of its client, “UMB Bank, National Association.” (Amend. Compl. ¶ 2) “On August 1, 2016 [Stern & Eisenberg] filed for Summary Judgment. Attached to [the] Motion . . . was a copy of [Lopaz's] Original Note which is just plain false evidence. [Stern & Eisenberg] represented to [the foreclosure judge] that this Exhibit was a true copy of the Original Note. [Stern & Eisenberg] lied to the tribunal and placed false evidence into [the] court record.” (Id. ¶ 5)

         “On November 7, 2016 [Stern & Eisenberg] filed a Supplemental Brief . . . and placed the same false copy of the Original Note into the record.” (Amend. Compl. ¶ 7)

         “On July 5, 2017 Michael Bennet, Assistant Secretary of [Defendant] Rushmore [Loan Management Services] executed a Certification under penalty of perjury [entitled ‘Mortgage Foreclosure Amount Due Schedule], which contained false evidence attached, ” namely the allegedly false Original Note. (Amend. Compl. ¶ 9) The Certification also allegedly included mortgage insurance premiums stated to be due and owing that were not actually due and owing. (Id. ¶ 14)

         On July 21, 2017 Stern & Eisenberg again allegedly attached the allegedly false Original Note to their Motion for Final Judgment in the foreclosure action. (Amend. Compl. ¶ 8)

         The Superior Court of New Jersey, Burlington County Chancery Division, entered a Final Judgment of foreclosure on August 11, 2017. (Amend. Compl. ¶ 12 and Ex. I) Lopaz appealed the judgment to the Appellate Division.

         On December 7, 2017 Stern & Eisenberg allegedly misrepresented to the New Jersey Appellate Division that: (1) Lopaz had not responded to discovery requests in the foreclosure action; and (2) its “client ha[d] been in possession of the Original Note since September 9, 2014, which is an impossibility.” (Amend. Compl. ¶ 10) Similarly, on December 18, 2017, Stern & Eisenberg allegedly misrepresented to the Appellate Division that: (1) Lopaz had not responded to discovery requests in the foreclosure action; and (2) “the mortgage at issue was not regulated by the Secretary of HUD.” (Amend. Compl. ¶ 11)

         Lopaz alleges that all of the above “efforts by [Stern & Eisenberg] to collect the debt were false, misleading and fraudulent because they repeatedly made false statements, under penalty of perjury, and attached evidence they knew to be false.” (Amend. Compl. ¶ 13) Defendants allegedly “falsely represented that they had a legal right to collect upon the debt and falsely and misleadingly failed to disclose material facts.” (Id. ¶ 25) “What makes matters worse, ” Lopaz asserts, “they did all of this in a New Jersey State Court.” (Id.; emphasis in the Amended Complaint).

         Lopaz asserts that her injuries include the money she spent to file the appeal of the foreclosure judgment, including attorneys fees. (Amend. Compl. ¶ 43). In her brief in opposition to the instant motion, Lopaz elaborates, “Plaintiff has suffered . . . [t]he loss of her home with a tax assessed value of $119, 500, the loss of $7500 of hard earned money to file an appeal for wrongful foreclosure, and future damages from moving expenses when the wrongful eviction takes place.” (Opposition Brief, p. 6)[2]

         This lawsuit followed. Defendants filed the instant Motion to Dismiss, in response to which Lopaz filed an Amended Complaint. Defendants have elected to rely on the arguments set forth in their original Motion to Dismiss, as they take the position that the Amended Complaint fails to cure the deficiencies identified in the ...


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