United States District Court, D. New Jersey, Camden Vicinage
ANNA CONOVER, PARRISH AND JACQUELINE SHERIDAN, BRYAN AND JACQUELINE VAN VELSON, Plaintiffs,
PATRIOT LAND TRANSFER, LLC, WELLS FARGO BANK, N.A., Defendants.
DEPALMA GREENBERG, LLC BY: BRUCE D. GREENBERG, ESQ. COUNSEL
GILDEA & SCHMIDT, LLC BY: MICHAEL PAUL SMITH, ESQ.;
MELISSA L. ENGLISH, ESQ.; SARAH A ZADROZNY, ESQ. COUNSEL FOR
GREENWALD & LAAKE, PA BY: TIMOTHY F. MALONEY, ESQ.;
VERONICA NANNIS, ESQ.; MEGAN A. BENEVENTO, ESQ. COUNSEL FOR
DILWORTH PAXON LLP BY: BENJAMIN W. SPANG, ESQ.; JERRY R.
DESIDERATO, ESQ. COUNSEL FOR DEFENDANT PATRIOT LAND TRANSFER,
LLC K&L GATES LLP BY: JENNIFER J. NAGLE, ESQ.; JEFFREY S.
PATTERSON (PRO HAC VICE); DAVID E. FIALKOW,
ESQ. (PRO HAC VICE) COUNSEL FOR DEFENDANT WELLS
FARGO BANK, N.A.
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE
Anna Conover, Parrish and Jacqueline Sheridan, and Bryan and
Jacqueline Van Velson (collectively,
“Plaintiffs”) brought this putative class action
against Defendants Patriot Land Transfer, LLC
(“Patriot”) and Wells Fargo Bank, N.A.
(“Wells Fargo”), alleging violations of the Real
Estate Settlement Procedures Act (“RESPA”), 12
U.S.C. § 2601. This matter comes before the Court upon
Wells Fargo's Motion to Dismiss (the
“MTD”)[Dkt. No. 49] Plaintiffs' First Amended
Complaint (the “Amended Complaint” or
“FAC”)[Dkt. No. 46]. Although Patriot did not
file its own Motion to Dismiss, Patriot has joined and
supported Wells Fargo's MTD. See Dkt. No. 50].
For the reasons set forth below, the Court will
DENY Wells Fargo's Motion to Dismiss
FACTUAL AND PROCEDURAL BACKGROUND
purported class action, Plaintiffs allege that they are
victims of an illegal “kickback agreement”
between the Defendants. Wells Fargo is a financial services
company, which offers home mortgage loans, among other
products. Patriot is a title insurance agency, providing
title and settlement services in New Jersey. Plaintiffs
contend that they obtained home mortgage loans from Wells
Fargo in 2014, and that Wells Fargo referred or assigned
these loans to Patriot for title and settlement services.
Amended Complaint, Plaintiffs claim that Wells Fargo and
Patriot violated RESPA by engaging in a “quid pro
quo” kickback scheme, whereby Patriot provided Wells
Fargo with “kickbacks in the form of borrower leads and
data lists” in return for Wells Fargo's referral
and assignment of loans to Patriot for title and settlement
services. Plaintiffs contend that “Patriot purchased
borrower leads data and lists from third party marketing
companies and gave the data to Wells Fargo on a per unit
basis for each loan referred to and closed by Patriot.”
FAC at ¶ 2. According to Plaintiffs, these kickbacks
were funded by systematically overcharging Plaintiffs
“the maximum amount for settlement services, including
special and/or extra charges and discretionary fees.”
Id. at ¶ 24.
further allege that Defendants took affirmative steps to
fraudulently conceal the kickback payments in violation of
RESPA. Specifically, Plaintiffs theorize that Patriot and
Wells Fargo chose kickbacks in the form of borrower lists and
data under the false belief that these “things of
value” were not required to be reported on the
borrowers' Good Faith Estimate (“GFE”),
HUD-1, or other loan documents, and, therefore, could be
concealed from borrowers and regulators. See FAC at
¶ 87. Because of this effort to conceal the kickback
arrangement, Plaintiffs claim that they were unable to
discover the violations despite exercising reasonable
diligence throughout the closing process. See id. at
¶ 97. Due to Defendants' alleged fraudulent
concealment of the kickback agreement, Plaintiffs claim they
are entitled to equitably toll RESPA's one-year statute
of limitations. See id. at ¶¶ 77-100.
Plaintiffs filed the initial class action complaint [Dkt. No.
1] in June of 2017, on behalf of themselves and all others
similarly situated. In August 2017, Patriot and Wells Fargo
responded with motions to dismiss the original complaint. On
March 23, 2018, this Court heard oral argument and dismissed
the original complaint, but granted Plaintiffs leave to file
an amended complaint. Subsequently, Plaintiffs filed the
Amended Complaint on May 7, 2018. Now, Wells Fargo moves to
dismiss Plaintiffs' claims under Fed R. Civ. P. 12(b)(6).
withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 662.
“[A]n unadorned, the defendant-unlawfully-harmed-me
accusation” does not suffice to survive a motion to
dismiss. Id. at 678. “[A] plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)).
reviewing a plaintiff's allegations, the district court
“must accept as true all well-pled factual allegations
as well as all reasonable inferences that can be drawn from
them, and construe those allegations in the light most
favorable to the plaintiff.” Bistrian v. Levi,
696 F.3d 352, 358 n.1 (3d Cir. 2012). When undertaking this
review, courts are limited to the allegations found in the
complaint, exhibits attached to the complaint, matters of
public record, and undisputedly authentic documents that form
the basis of a claim. See In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997);
Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
a statute of limitations defense may only be raised by way of
motion under Rule 12(b)(6) where “the time alleged in
the statement of a claim shows that the cause of action has
not been brought within the statute of limitations.”
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)
(internal quotations omitted). If “the bar is not
apparent on the face of the complaint, then it may not ...