United States District Court, D. New Jersey
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Defendant Bayview Loan
Servicing LLC's Motion to Dismiss Plaintiff Miguel
Carrera's complaint, (ECF No. 9). At a conference on the
motion to dismiss. Plaintiff sought an opportunity to amend
his complaint because he had facts which would undermine
Defendant's motion. The Court will permit the amendment
and allow a motion to dismiss, if appropriate. Defendant
acquiesced to same; but requested that the Court address
Count V, which alleges slander of title, because it does not
involve any of the amendments Plaintiff has stated. The
motion to dismiss is granted in part and denied in part
without prejudice and the Plaintiff shall file an amended
complaint. For the following reasons, Plaintiffs complaint is
dismissed with prejudice as to Count V, Slander of Title. The
remainder of Plaintiff s complaint, Counts I through IV, are
dismissed without prejudice.
case arises from a State foreclosure action. On September 6,
2006, Plaintiff Miguel Carrera executed a promissory note and
mortgage in the amount of $392, 000 payable to JP Morgan
Chase Bank, N.A. ("Chase"), on a property located
at 230 Baldwin Street, New Brunswick, New Jersey. (Compl.,
ECF No. 1, at ¶ 10). On March 22, 2015, the note and
mortgage were assigned to Bayview Loan Servicing, LLC
("Bayview") (Id. at ¶ 12); and on May
10, 2016, Bayview filed a foreclosure complaint against
Plaintiff in the Superior Court of New Jersey, Chancery
Division, Middlesex County. (Foreclosure Compl., ECF No.
9-5). One of the issues in dispute is when Plaintiff
defaulted on the note and mortgage. Bayview retained Schiller
Knapp Lefkowitz & Hertzel, LLP (Schiller Knapp) as its
counsel for the foreclosure action.
April 11, 2017, the Superior Court entered Final Judgment for
foreclosure. (J. of Foreclosure, ECF No. 9-8). On July 7,
2017, Plaintiff sought a modification of the loan, and
submitted a complete loss mitigation application. (Compl., at
¶ 14). On July 24, 2015, Plaintiff filed a motion to
stay the impending Sheriffs sale to allow review of the
modification; the stay was granted on July 25, 2017, and the
Sheriffs sale was stayed until September 20, 2017.
(Id. at 17).
alleges that on September 19, 2017, his counsel contacted
Schiller Knapp, foreclosure attorneys for Bayview, to confirm
that the Sheriffs sale had been adjourned. (Id. at
¶ 18). That same day, Schiller Knapp provided Plaintiffs
counsel with two letters, dated September 13 and 19, 2017
informing Plaintiff he had been denied the modification for
failure to provide requested documents by the deadline.
(Id. at ¶ 19). The next day, on September 20,
2017, Plaintiffs counsel received an email from Schiller
Knapp that contained a letter from Bayview, dated August 1,
2017, requesting additional documents for the modification.
(Id. at ¶ 21). In response, that same day,
Counsel for Plaintiff sent Schiller Knapp the additional
documents that had been requested by Bayview, and proof that
those documents had been received by Bayview on August 30,
2017. (Id. at ¶ 22).
September 20, 2017, Schiller Knapp conducted the Sheriffs
sale, and the property was sold to a third party.
(Id. at ¶ 23). On December 18, 2017, the
foreclosure court entered an order that required Bayview to
review Plaintiffs modification application which had been
submitted in July 2017, with the additional documents
provided in August 2017, and required Bayview to provide
anmplanation for any denial and provide a copy to the court.
(Id. at ¶ 27). After the third-party purchaser
of the property filed a motion to confirm the Sheriffs sale
and dismiss Plaintiffs objection to the sale, on March 29,
2018, the foreclosure court ordered Bayview to either approve
or deny the modification application within fourteen days,
and if the modification was denied, Bayview was to provide a
basis for the denial. (Id. at ¶ 31). Finally,
on April 12, 2018, Schiller Knapp submitted a letter from
Bayview, dated March 22, 2018, which purported to deny
Defendant's modification application based upon
Plaintiffs failure to provide documents. (Id. at
brought the present suit against both Bayview and Schiller
Knapp, bringing claims for violations of 15 U.S.C. §
1692(e) of the of the Fair Debt Collection Practices Act
("FDCPA"), (Count I), violations of 15 U.S.C.
§ 1692(f) of the FDCPA (count II), violations of 15
U.S.C. § 1692(d) of the FDCPA (count III), a claim for
respondeat superior against Bayview (Count IV), and slander
of title (Count V).
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court is required to accept as
true all allegations in the Complaint and all reasonable
inferences that can be drawn therefrom, and to view them in
the light most favorable to the non-moving party. See
Oshiverv. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1384 (3d Cir. 1994). "To survive a motion to
dismiss, 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 Atl Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The Third Circuit
set forth a three-part analysis for determining whether not a
complaint may survive a motion to dismiss for failure to
state a claim:
First, the court must "tak[e] note of the elements a
plaintiff must plead to state a claim." Second, the
court should identify allegations that, "because they
are no more than conclusions, are not entitled to the
assumption of truth." Finally, "where there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement for relief."
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d
means that [the] inquiry is normally broken into three parts:
(1) identifying the elements of the claim, (2) reviewing the
complaint to strike conclusory allegations, and then (3)
looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one
of the inquiry are sufficiently alleged." Malleus v.
George,641 F.3d 560, 563 (3d Cir. 2011). While a court
will accept well-pleaded allegations as true for the purposes
of the motion, it will not accept bald assertions,
unsupported conclusions, unwarranted inferences, or sweeping
legal conclusions cast in the form of factual allegations.
Iqbal, 556 U.S. at 678-79; see also Morse v.
Lower Merion School District,132 F.3d 902, 906 (3d ...