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King v. Wells Fargo Bank, N.A.

United States District Court, D. New Jersey

December 12, 2018

JOHNNIE LEE KING and ANDREA Z. GUNTER-KING, Plaintiffs,
v.
WELLS FARGO BANK, N.A., et al., Defendants.

          MEMORANDUM OPINION

          HONORABLE JEROME B. SIMANDLE JUDGE

         In this action, Plaintiffs Johnnie Lee King and Andrea Z. Gunter-King (collectively, “Plaintiffs”) allege that Defendants Wells Fargo Bank, N.A., Wells Fargo Home Mortgage, and Wachovia Mortgage FSB (collectively, “Defendants”) fraudulently obtained a loan and did not have standing to foreclose on Plaintiffs' mortgage. [Docket Item 1.] Defendants filed the instant motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [Docket Item 7.] Plaintiffs did not timely file opposition to Defendants' motion to dismiss; instead, Plaintiffs filed yesterday a motion to amend/correct[1] [Docket Item 8] and today filed an emergency motion for a temporary restraining order [Docket Item 9], which are also pending before the Court.

         Plaintiffs' motion for temporary restraining order seeks to enjoin the Burlington County Sheriff's sale of Plaintiffs' home scheduled for December 14, 2018, thus requiring immediate determination of the threshold issue of whether this federal court has jurisdiction to hear this case. For the reasons discussed below, Defendants' motion to dismiss will be granted and Plaintiffs' motions to amend/correct and for a temporary restraining order will be denied. The Court finds as follows:

         1. Factual and Procedural Background.[2]

         On February 25, 2008, Plaintiff Andrea Z. Gunter-King (“Gunter-King”) executed and delivered a Note in favor of Defendant Wachovia Mortgage FSB (“WM-FSB”) in the amount of $408, 000.00 for a property located at 167 Memorial Lane, Mount Laurel Township, New Jersey (hereinafter, “the Loan”). [Docket Item 7-3 at ¶ 1.] To secure the Note, Plaintiffs collectively executed and delivered a mortgage to WM-FSB on February 25, 2008, which was recorded in the office of the Clerk of Burlington County on March 27, 2008. [Id. at ¶ 2.]

         2. Plaintiffs defaulted on their loan obligations on or about July 15, 2012. [Id. at ¶ 1-k.] On May 8, 2015, Wells Fargo Bank, N.A. (“Wells Fargo”)[3] filed a Complaint for Foreclosure in the New Jersey Superior Court, Chancery Division, Burlington County, Docket No. F-16723-15 (hereinafter, “the Foreclosure Action”). [Docket Item 7-3.]

         3. On June 16, 2015, Plaintiff Gunter-King filed a contesting Answer to the Complaint [Docket Item 7-4], which was subsequently amended by Attorney Joshua Thomas, Esq. [Docket Item 7-6.] On July 17, 2015, default was entered against Plaintiff King. [Docket Item 7-5 at 1.] On November 11, 2015, Plaintiffs filed a motion to vacate default, which was denied by Order dated December 7, 2015. [Id. at 2.] On December 21, 2015, Plaintiffs filed another motion to vacate default and to participate in the foreclosure mediation program. [Id.] On January 5, 2016, Wells Fargo filed a motion for summary judgment to strike the Amended Answer of Gunter-King and send the matter back to the Office of Foreclosure to proceed uncontested. [Id.] On February 3, 2016, counsel for Wells Fargo and Plaintiffs entered into a Consent Order, which withdrew the pending motions to vacate and for summary judgment, deemed the Gunter-King Amended Answer as non-contesting, and let the matter proceed to final judgment as an uncontested matter. [Docket Item 7-7.] As part of the Consent Order, Wells Fargo also agreed not to apply for final judgment until June 1, 2016. [Id. at ¶ 4.]

         4. On June 23, 2016, Wells Fargo applied for final judgment, which was entered by the Superior Court on July 19, 2016 (hereinafter, “the Final Foreclosure Judgment”). [Docket Item 7-5 at 3.]

         5. On February 27, 2017, Plaintiffs filed an emergency motion to stay the sheriff's sale, which was denied by the Superior Court that day. [Id.] On February 28, 2017, Plaintiff Gunter-King filed a motion for reconsideration, which was again denied by Order dated March 1, 2018. [Id. at 4.] On June 1, 2017, Plaintiff Gunter-King filed a “Praecipe to Settle Under Equity Jurisdiction, ” wherein she claimed that Plaintiffs had paid off the Loan. [Docket Item 7-8.] On September 13, 2017, Plaintiff King filed a motion to stay the sheriff's sale, which was denied by Order dated September 14, 2017. [Docket Item 7-5 at 5.]

         6. On January 21, 2018, Joshua Thomas, Esq. filed a motion in the Foreclosure Action to vacate final judgment and default judgment arguing, inter alia, that the Loan was unconscionable, predatory, illegal, and violated the Equal Protection Clause; that Plaintiffs' Pick-A-Payment Loan violated federal lending regulations; that Wells Fargo was in violation of an October 5, 2010 New Jersey Assurance entered into with the New Jersey Attorney General; that Wells Fargo was not the “real party in interest”; and that there were “irregularities” in the Foreclosure Action. [Docket Item 7-9.]

         7. After hearing oral argument, the Honorable Kathi F. Fiamingo, J.T.C. (t/a) denied Plaintiffs' motion by Order dated June 8, 2018. [Docket Item 7-10 at 1.] In the Statement of Reasons, Judge Fiamingo held that the claims and defenses Plaintiffs sought to litigate were voluntarily dismissed by Plaintiffs when their counsel, Mr. Thomas, signed the Consent Order on February 3, 2016, and that Plaintiffs had provided no reason to otherwise justify vacating the Consent Order or Final Foreclosure Judgment. [Id. at 2-9.]

         8. Thereafter, on July 2, 2018, Plaintiffs filed a twenty-count Complaint in federal court, arising from the circumstances surrounding the mortgage and foreclosure. [Docket Item 1.] On October 2, 2018, Defendants filed a motion to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [Docket Item 7.] Plaintiffs did not timely file opposition to Defendants' motion to dismiss, which was due on October 29, 2018; instead, Plaintiffs filed a motion to amend/correct on December 11, 2018 [Docket Item 8], and “emergency motion for a temporary restraining order to stay the December 14, 2018 eviction” on December 12, 2018. [Docket Item 9.] The motions will be decided without oral argument pursuant to Fed.R.Civ.P. 78.

         9. Standard of Review.

         Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). An attack on subject matter jurisdiction can be either facial - based solely on the allegations in the complaint - or factual - looking beyond the allegations to attack jurisdiction in fact. Mortensen v. First Fed. Sav. & Loan Ass'n,549 F.2d 884, 891 (3d Cir. 1977). Where the challenge to subject matter jurisdiction is facial, the court must take all the allegations in the complaint to be true and construe them in the light most favorable to the Plaintiffs. Id. However, when the Rule 12(b)(1) motion is a factual attack, such as here, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. Further, a Court may “review ...


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