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Kemp v. Select Portfolio, Inc.

United States District Court, D. New Jersey

July 26, 2019

JOHN T. KEMP, Plaintiff,
v.
SELECT PORTFOLIO, INC. SPS, LASALLE BANK NATIONAL ASSOCIATION, TRUSTEE FOR LEHMAN BROTHERS STRUCTURED ASSET INVESTMENT LOAN TRUST SAIL 2005-2, and DOES 1-50, inclusive, Defendants.

          JOHN T. KEMP Appearing pro se.

          CHARLES W. MILLER, III BEN ZEV RAINDORF ROBERT D. BAILEY PARKER IBRAHIM & BERG LLP Attorneys for Defendants.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This case concerns various federal and state statutory and state common law claims stemming from the foreclosure and ordered Sheriff's Sale of Plaintiff's residence. Currently before the Court is Defendants' Motion to Dismiss. For the reasons discussed herein, Defendants' Motion to Dismiss will be granted.

         BACKGROUND

         The Court takes its facts from the allegations in Plaintiff's Complaint. It appears Plaintiff owned a residential home at 120 Chestnut Street, Audubon, N.J. 08106 (the “Property”). Plaintiff's home was subject to a mortgage (the “Mortgage”). Although it is unclear the role of each Defendant, Plaintiff alleges each Defendant was involved in some manner with the issuing, servicing, or transferring of the Mortgage. At some point, one of the defendants initiated foreclosure proceedings in the New Jersey Superior Court, Chancery Division, Camden County, final judgment was rendered, Plaintiff's residence was foreclosed upon, and a Sheriff's Sale was ordered.

         Plaintiff's Complaint is not a model of clarity as to which claims he actually wishes to have adjudicated and which violations he notes as background. Regardless, the Court will note here the claims it believes are at issue as faithfully as possible. Plaintiff claims the following: (1) a violation of 24 C.F.R. § 3500.10, a regulation implementing the Unfair, Deceptive or Abusive Acts and Practices (the “UDAP”); (2) a request for declaratory and injunctive relief finding the mortgage void, keeping the Property in his name, and halting the Sheriff's Sale; (3) a request for punitive damages, the legal basis of which is unclear; (4) a violation of the UDAP, 15 U.S.C. § 45(a)(1) and the Fifth Amendment of the United States Constitution; (5) violations of the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. § 1601, et seq.; (6) predatory lending;[1] and (7) quiet title. The corresponding relief requested includes compensatory, special, treble, and punitive damages as well as the declaratory and injunctive relief noted supra.

         On May 24, 2019, Plaintiff filed a letter with this Court suggesting that he had entered Chapter 13 Bankruptcy. On July 3, 2019, this Court filed an Order requesting the parties to file letters with the Court advising it of what effect, if any, this had on Defendants' Motion to Dismiss. Plaintiff filed a letter on July 10, 2019 and Defendants filed a letter on July 15, 2019. The Court also construed Plaintiff's May 24, 2019 letter as opposition[2] to Defendants' Motion to Dismiss and as a separate request for injunctive relief. The Court ordered, in the same July 3, 2019 Order, that Defendants file a reply to Plaintiff's opposition. Defendants did so on July 17, 2019. Accordingly, the matters before the Court are fully briefed and ripe for adjudication.

         ANALYSIS

         A. Subject Matter Jurisdiction

         This Court has subject matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. §§ 1331 and 1367.

         B. The Effect of Plaintiff's Suggestion of Bankruptcy

         As discussed supra, Plaintiff filed a letter with the Court on May 24, 2019 stating that he had filed for Chapter 13 Bankruptcy. Thereafter, the Court asked the parties to brief the issue of whether Plaintiff's suggestion of bankruptcy would have an effect, if any, on the continued litigation of the matter presently before the Court. Both Plaintiff and Defendants filed a letter with the Court.

         Plaintiff's letter discusses many specifics about this case, his current bankruptcy proceeding, and his previous bankruptcy proceedings but does not directly address the issue of the current bankruptcy case's effect on this litigation. Plaintiff stated: “As to the effect that my Bankruptcy filing may have on this case, I am unsure as I ...


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