United States District Court, D. New Jersey
ALFRED R. FAISON, et al Plaintiffs,
WELLS FARGO BANK N.A., et al Defendants.
OPINION AND ORDER
HONORABLE JAMES B. CLARK, III UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on a motion by
Plaintiffs Alfred R. Faison and Elva J. Faison (collectively
“Plaintiffs”) for leave to file an Amended
Complaint alleging additional facts for the current causes of
action and removing the causes of action for violations of
civil rights [ECF No. 29]. Defendants Wells Fargo
(“Defendant” or “Wells Fargo”) and
Ocwen Loan Servicing LLC (“Ocwen”) (collectively
“Defendants”) oppose Plaintiffs' motion [ECF
No. 32]. The Court fully reviewed the parties' written
submissions and considers Plaintiffs' motion without oral
argument pursuant to L. Civ. R. 78.1(b). For the reasons set
forth below, Plaintiffs' Motion to Amend is
matter arises from a foreclosure action between Wells Fargo
and Plaintiffs. Plaintiffs owned the real property located at
234 Lakeview Avenue, Paterson, New Jersey (the “Subject
Property”). Compl. ¶ 10. Sometime in November
2006, Plaintiffs entered into a loan with BNC Mortgage Inc.
Id. ¶¶ 11-15; see also ECF No.
19-3 at 2. In connection with same, Plaintiffs executed a
note secured by a mortgage on the Subject Property. ECF No.
19-3 at 2. According to Defendants, Wells Fargo is the holder
of the note and Ocwen is the servicer. Id.
Defendants allege that, in 2009, Plaintiffs defaulted on the
loan by failing to make the required payments. Id.
Plaintiffs dispute this assertion and argue that they never
defaulted on their mortgage. Compl. ¶ 9.
September 12, 2013, Wells Fargo filed a foreclosure action
against Plaintiffs in the Superior Court of New Jersey,
Chancery Division, Passaic County (“Foreclosure
Action”). Decl. of David Fitzgibbon, Esq.
(“Fitzgibbon Decl.”), Ex. A, ECF No. 19-2 at 5.
Shortly thereafter, Plaintiffs removed the Foreclosure Action
to this Court. Id. at 35. However, in December 2013,
it was remanded to the Superior Court of New Jersey.
Id. at 39. Almost three years later, in April 2016,
Wells Fargo obtained a final judgment against Plaintiffs.
Id. at 64. After entry of the final judgment,
Plaintiffs filed a motion to vacate judgment which the state
court denied by order dated January 17, 2017. Id. at
70. As a result, Plaintiffs initiated this action on July 18,
2018 by filing a Complaint [ECF No. 1], and at the same time
made a motion for an order to show cause, seeking temporary
restraints. See Compl.
their Complaint, Plaintiffs allege claims for fraud (Count
1), violations of the Federal Fair Debt Collection Practices
Act and Federal Consumer Protection Act (Count 2), civil
conspiracy (Count 3), and harassment and negligent infliction
of emotional distress (Count 4). See Compl. Before
Defendants filed their response to Plaintiffs' Complaint,
the Court addressed Plaintiffs' motion for an order to
show cause. On July 24, 2018, the Honorable John M. Vazquez
entered an Order denying Plaintiffs' motion for,
inter alia, failing to cite any legal authority and
for failing to address the necessary elements of any of
Plaintiffs' causes of action. See ECF No. 9.
Shortly thereafter, on August 10, 2018, Defendants filed a
motion to dismiss Plaintiffs' Complaint. See ECF
No. 19. In opposition, Plaintiffs' filed a motion to
amend. ECF No. 29. Defendants filed a response on October 1,
2018 [ECF No. 32]. While the Court makes note of
Defendants' motion to dismiss, this Opinion and Order
does not address the merits of said motion.
to Federal Rule of Civil Procedure 15(a), “a party may
amend its pleading only with the opposing party's written
consent or the court's leave” and “[t]he
court should freely give leave when justice so
requires.” The decision to grant leave to amend rests
within the sound discretion of the trial court. Zenith
Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321,
330 (1970). In determining a motion for leave to amend,
Courts consider the following factors: (1) undue delay on the
part of the party seeking to amend; (2) bad faith or dilatory
motive behind the amendment; (3) repeated failure to cure
deficiencies through multiple prior amendments; (4) undue
prejudice on the opposing party; and/or (5) futility of the
amendment. See Great Western Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010)
(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
In addition, “[t]he Third Circuit has consistently
emphasized the liberal approach to pleading embodied by Rule
15.” Endo Pharma v. Mylan Techs Inc., 2013
U.S. Dist. LEXIS 32931, at *4 (D. Del. Mar. 11, 2013). The
Court should only deny leave when these factors
“suggest that amendment would be ‘unjust'. .
..” Arthur v. Maersk, Inc., 434 F.3d 196, 203
(3d Cir. 2006).
do not assert that Plaintiffs' motion was unduly delayed,
prejudicial, or results from any bad faith, but argues that
Plaintiffs' proposed amendments are futile. An amendment
will be considered futile if it “is frivolous or
advances a claim or defense that is legally insufficient on
its face.” Harrison Beverage Co. v. Dribeck Imps.,
Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (citations
omitted). In determining whether an amendment is insufficient
on its face, the Court employs the same standard as in a Rule
12(b)(6) motion to dismiss. In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)
(citation omitted). Under a Rule 12(b)(6) analysis, the
question is not whether the movant will ultimately prevail,
and detailed factual allegations are not necessary to survive
such a motion. Antoine v. KPMG Corp., 2010 WL
147928, at *6 (D.N.J. Jan. 6, 2010). If a proposed amendment
is not clearly futile, then denial of leave to amend is
improper. Meadows v. Hudson County Bd. of Elections,
2006 WL 2482956, at *3 (D.N.J. Aug. 24, 2006).
respect to Plaintiffs' proposed Amended Complaint,
Defendants assert that the proposed claims are futile because
the Rooker-Feldman doctrine requires dismissal and
that Plaintiffs are barred from litigating their claims based
upon the Entire Controversy Doctrine, res judicata, and/or
collateral estoppel. See ECF No. 32. Defendants
further assert that even if Plaintiffs were able to overcome
these “insurmountable hurdles”, Plaintiffs'
claims still fail under Rule 12(b)(6). Id. Based on
these reasons, Defendants assert that this Court should deny
Plaintiffs' request to file an Amended Complaint and
dismiss this action in its entirety with prejudice.
Defendants may be correct in their assertions regarding the
viability of Plaintiffs' proposed claims, it appears to
the Court that a ruling on Defendants' futility arguments
in the context of the present motion would require legal
determinations better suited for a motion to dismiss.
Accordingly, the Court declines to find at this juncture that
Plaintiffs' proposed amendments are clearly futile. Based
on the foregoing, Plaintiffs' motion for leave to file an
Amended Complaint is GRANTED.
CONCLUSION AND ORDER
Court having considered the papers submitted pursuant to
Fed.R.Civ.P. 78, and for the reasons set forth above;
IS on this 22nd day of April, 2019,
ORDERED that Plaintiffs' motion for
leave to file an Amended Complaint [ECF ...