Rodrigues v. Wells Fargo Bank, N.A. et al

REPLY BRIEF to Opposition to Motion

D.N.J.December 12, 2016

TABLE OF CONTENTS Page TABLE OF AUTHORITIES.............................................................................................. i PRELIMINARY STATEMENT........................................................................................ 1 I. LEGAL REASONING AND ARGUMENTS....................................................... 1 A. Standard of Review..................................................................................... 1 B. Plaintiff Claims that the Attorney Certification is False............................. 2 C. Plaintiff Claims That Defendant Violated Federal Statutes by Discharging a Prior Mortgage Fails to Constitute A Violation of these Statutes and Should Be Dismissed Pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6).. …………………………………………………………………………… 3 II. CONCLUSION.............................................................................................. 6 Case 2:16-cv-03845-KM-JBC Document 30 Filed 12/12/16 Page 1 of 9 PageID: 493 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Agard v. Select Portfolio Servicing, Inc., No. 11-cv-1826, 2012 U.S. Dist. LEXIS 43286 (E.D.N.Y. Mar. 28, 2012).. . . . . . . . . . . . 4 Ashcroft v. Iqbal, 556 U.S. 662 (2009)................................. 1 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)........................... 2 Cetel v. Kirwan Financial Group, 460 F.3d 494, 509 (3d Cir. 2006). . . . . . . . . . . . . . . . . . 5 Diessner v. Mortgage Elec. Registration Sys., Inc., 618 F. Supp. 2d 1184, 1188 (D. Ariz. 2009) aff’d, 384 F. App’x 609 (9th Cir. 2010). . . . .5 Eun Ju Song v. Bank of America, No. 14-3204, 2015 WL 248436, at *2 (D.N.J. Jan 20, 2015). . . . . . . . . . . . . . . . . . . . . . . 4 FTC v. Check Inves, 502 F.3d 159, 171 (3d Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Geter v. Mortgage Elec. Registration Sys., Inc., No. 10-12750, 2011 U.S. Dist. LEXIS 13494, at *9 (E.D. Mich. Feb. 10, 2011). . . . . . . . .5 Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . 6 In Re Agard, 444 B.R. 231 (Bankr. E.D.N.Y. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990). . . . . . . . .. . . . . . . . . . . . . . . . . 5 Jesinoski v. Countrywide Home Loans 574 U.S. ___ 135 S. Ct 790 (2015)..........4 Mansour v. Cal-W. Reconveyance Corp., 618 F. Supp. 2d 1178, 1182 (D. Ariz. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 McLaughlin v. Chase Home Fin., 519 F. App’x 904, 909 (6th Cir. 2013). . . . . . . 5 Murdock v. E. Coast Mortg, 2012 U.S. Dist. LEXIS 85428 (D.N.J. June 20, 2012). . . . . . 5 Pollice v. Nat'l Tax Funding, 225 F.3d 379, 403 (3d Cir. 2000). . . . . . . . . . . . . . . . . . . . . 5 Santos v. United States, 559 F.3d 189, 197 (3d Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . 5 Case 2:16-cv-03845-KM-JBC Document 30 Filed 12/12/16 Page 2 of 9 PageID: 494 Siwulec v. Chase Home Finance. No. Civ.A.10-1875, 2010 U.S. Dist. LEXIS 128942, 2010 WL 5071353, at *2-3 (D.N.J. Dec. 7, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 US Bank v. Ibanez, 856 F. Supp.2d 273 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STATE CASES Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 350 (Ch. Div. 2010). . . . . . . . . . . . . . . 4 FEDERAL STATUTES 15 U.S.C. §1635.................................................. 4 15 U.S.C. § 1692. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 15 U.S.C. § 1692a(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 FEDERAL RULES FRCP 8(a)(2)....................................................2 FRCP 12(b)(6)...................................................1,2,3 FRE 803(14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Case 2:16-cv-03845-KM-JBC Document 30 Filed 12/12/16 Page 3 of 9 PageID: 495 780292 PHELAN HALLINAN DIAMOND & JONES, PC By: Sonya G. Chazin, Esquire, ID No. 004281998 400 Fellowship Road, Suite 100 Mount Laurel, NJ 08054 (856) 813-5500 E-mail: sonya.chazin@phelanhallinan.com Attorneys for Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOSE RODRIGUES, PLAINTIFFS, V. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”) DEFENDANT CIVIL ACTION NO. 2:15-CV-03845 MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO DISMISS COMPLAINT AS TO MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”) WITH PREJUDICE PURSUANT TO FRCP 12(b)(6) PRELIMINARY STATEMENT Defendant MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”) submits this Reply Memorandum in Support of Defendant’s Motion to Dismiss with Prejudice Plaintiff JOSE RODRIGUES (“RODRIGUES”) Complaint. Rodrigues’s opposition most notably does not sufficiently rebut Defendant’s arguments with regard to the material issues in this case, which confirms that the Complaint should be dismissed with prejudice. I. LEGAL REASONING AND ARGUMENTS A. Standard of Review FRCP 12(b)(6) requires dismissal where, as here, a complaint lacks factual allegations sufficient to establish a proper and plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662 1 Case 2:16-cv-03845-KM-JBC Document 30 Filed 12/12/16 Page 4 of 9 PageID: 496 (2009). The “short and plain statement of the claim” requirement of FRCP 8(a)(2) is not satisfied by a complaint that amounts to an “unadorned, the defendant-unlawfully-harmed-me accusation.” Id. A complaint must provide “more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). The Complaint clearly fails to pass these tests. Even if the Complaint sufficiently pled a plausible right to relief at law - which it does not -- it is devoid of sufficient factual content because it fails to provide the necessary details as to what actions MERS took that would be violative of any federal regulation, much less damaging to the Plaintiff. Although the standard for a Motion to Dismiss is a liberal one, thus requiring the Court to inspect the Complaint carefully and with attention to great detail, in this case, the Defendant has met said standard. The Defendant’s only involvement with this matter was that of being the party to discharge the prior mortgage on this property. The Plaintiff, in his Complaint, states that that discharge was illegal as there was no proof as to what entity funded the loan and that Defendant was in violation of the terms of the mortgage document. This Complaint fails to state a claim as the Complaint is full of presumptions, conclusions and allegations that are legally insufficient. As such, the Complaint should be dismissed under Rule 12(b)(6) and Rule 8(a). B. Plaintiff Claims that the Attorney Certification is False The Plaintiff alleges misrepresentations in the Attorney Certification attached to the Motion to Dismiss. This Certification has annexed documents that were recorded in the County with regard to the Plaintiff’s property. These documents are recorded documents which establish or affect an interest in property; they speak for themselves and are to be viewed for what they are. See FRE 803(14). Plaintiff is simply trying to confuse the issue by stating that there is no evidence that the loan was paid off or funded. In this matter, there has not been a claim by the Plaintiff that they did not take out the 2005 or the 2007 loan, nor do they claim that the 2 Case 2:16-cv-03845-KM-JBC Document 30 Filed 12/12/16 Page 5 of 9 PageID: 497 documents that are annexed to the Motion to Dismiss are fraudulent in that they do not contain the Plaintiff’s signature or that they did not receive the money with regard to these loan The matter at hand is in fact quite simple. The Plaintiff took out a loan in 2005, refinanced it in 2007 and is trying to confuse the Court with claims about subsequent discharge of mortgage. It is clear that any claims made regarding the Attorney Certification should be not be considered by the Court in any way. C. Plaintiff Claims That Defendant Violated Federal Statutes by Discharging a Prior Mortgage Fails to Constitute A Violation of these Statutes and Should Be Dismissed Pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6) The Plaintiff alleges in conclusory fashion that MERS, by discharging a prior mortgage when there was a refinance in 2007, violated the Plaintiff of his due process of law and various federal statutes. These claims lack merit and should not be considered. On October 28, 2005, Plaintiff had executed a mortgage encumbering the property and to secure a note. Looking at the document itself, which was signed by the Plaintiff, it is written clearly that “MERS is the mortgagee under this security instrument.” After the Plaintiff refinanced his loan, this Mortgage was discharged on May 7, 2007. As it is clear that mortgagee is not seeking to enforce this mortgage against the Plaintiff, there is no injury to the Plaintiff and should be dismissed as a cause of action against this Defendant. In his Opposition, Plaintiff seems to claim that the MERS loan which was refinanced in 2007, is the current mortgage on the property. This is clearly not the case as the current mortgage on this property was originally entered into with Wells Fargo Bank, NA and subsequently assigned to HSBC Bank USA, National Association as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass through Certificates, Series 2007-7. See Defendant, Wells Fargo’s Motion to Dismiss Ex. A. MERS is not a party to the current mortgage on property, and should be dismissed from this action. Further, a discharge of mortgage which was filed and annexed to Defendant, MER’s, Motion 3 Case 2:16-cv-03845-KM-JBC Document 30 Filed 12/12/16 Page 6 of 9 PageID: 498 to Dismiss as Exhibit C. The Plaintiff claims that MERS was not the mortgagee, and therefore should not have discharged the mortgage. In reviewing the mortgage document itself, the definitional section of the mortgage describes the "Lender" as WMC Mortgage Corp. The same section of the mortgage refers to MERS as "a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns" and “MERS is the mortgagee under this security instrument.” The mortgagee, as described in the mortgage itself, is MERS, "as nominee for the Lender and its successors and assigns." As a mortgagee, MERS has certain rights. The Courts in Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 350 (Ch. Div. 2010) and Eun Ju Song v. Bank of America, No. 14-3204, 2015 WL 248436, at *2 (D.N.J. Jan 20, 2015) held that MERS is a mortgagee with rights to assign mortgage and therefore, as mortgagee, could clearly could discharge the mortgage as well. In furtherance of his position, Plaintiff cites to numerous irrelevant cases such as Jesinoski v. Countrywide Home Loans, 574 U.S. ___, 135 S.Ct. 790, 190 L. Ed 2d 650 (2015) (where the Supreme Court held that if a borrower notified a creditor within three (3) years of the transaction, it would be a valid recession of the transaction under 15 U.S.C. § 1635, Truth-in-Lending Act, (hereafter “TILA”); US Bank v. Ibanez, 856 F. Supp.2d 273 (2012) (where a Massachusetts Court required Foreclosure Plaintiffs to prove that they are assignees of a Mortgage); and In Re Agard, 444 B.R. 231 (Bankr. E.D.N.Y. 2011)(which held that MERS did not have the right to assign mortgages. This ruling was overturned in Agard v. Select Portfolio Servicing, Inc., No. 11-cv- 1826, 2012 U.S. Dist. LEXIS 43286 (E.D.N.Y. Mar. 28, 2012). None of these cases, or any of the other cases from other jurisdictions other than New Jersey which have been cited by the Plaintiff, show that MERS could not or should not have discharged the 2005 mortgage and do not show how MERS violated any Federal Statutes by issuing this discharge. The Plaintiff further claims that the statute limitations should be tolled with respect to the FDCPA. The Fair Debt Collection Practices Act ("FDCPA") prohibits the use of abusive, 4 Case 2:16-cv-03845-KM-JBC Document 30 Filed 12/12/16 Page 7 of 9 PageID: 499 deceptive, and unfair debt collection practices by debt collectors. 15 U.S.C. § 1692. In order to successfully bring a claim under the Act, a plaintiff must show that: (1) the defendant is a "debt collector," and (2) the defendant debt collector engaged in prohibited practices in an attempt to collect a debt. Siwulec v. Chase Home Finance. No. Civ.A.10-1875, 2010 U.S. Dist. LEXIS 128942, 2010 WL 5071353, at *2-3 (D.N.J. Dec. 7, 2010); See Also Pollice v. Nat'l Tax Funding, 225 F.3d 379, 403 (3d Cir. 2000); FTC v. Check Inves, 502 F.3d 159, 171 (3d Cir. 2007). A "debt collector" is defined under the Act as: [A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due [to] another. 15 U.S.C. § 1692a(6); MERS has been found time and time again not to be a debt collector under the FDCPA McLaughlin v. Chase Home Fin., 519 F. App’x 904, 909 (6th Cir. 2013), Diessner v. Mortgage Elec. Registration Sys., Inc., 618 F. Supp. 2d 1184, 1188 (D. Ariz. 2009) aff’d, 384 F. App’x 609 (9th Cir. 2010); Geter v. Mortgage Elec. Registration Sys., Inc., No. 10-12750, 2011 U.S. Dist. LEXIS 13494, at *9 (E.D. Mich. Feb. 10, 2011) and Mansour v. Cal-W. Reconveyance Corp., 618 F. Supp. 2d 1178, 1182 (D. Ariz. 2009). As such, the argument regarding tolling of the statute would have no effect on dismissal of the claims against this Defendant, MERS. Furthermore, the Court found in Murdock v. E. Coast Mortg, 2012 U.S. Dist. LEXIS 85428 (D.N.J. June 20, 2012) that the principles of equitable tolling do not extend to "garden-variety claims of excusable neglect." Santos v. United States, 559 F.3d 189, 197 (3d Cir. 2009) (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990). Therefore, a plaintiff must also establish that she exercised due diligence in attempting to uncover the relevant facts and preserving her claim. Id.; see also Cetel v. Kirwan Financial Group, 460 F.3d 494, 509 (3d Cir. 2006). Ultimately, a plaintiff seeking to invoke the 5 Case 2:16-cv-03845-KM-JBC Document 30 Filed 12/12/16 Page 8 of 9 PageID: 500 extraordinary remedy of equitable tolling bears a heavy burden and the Court should extend its application only sparingly. See Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005). The Court should not consider the Plaintiff’s baseless claims in this matter as they are without merit. It is clear that the crux of Plaintiff’s allegations in the complaint have been litigated in previous actions (where Defendant, MERS, was not named) and Plaintiff has simply added Defendant MERS to this lawsuit in order to justify his lawsuit against the current mortgagee on the property. For all the reasons stated above, the Plaintiffs’ Complaint should be dismissed with prejudice. II. CONCLUSION For the above reasons, Defendant, MERS, respectfully requests the Court grant its Motion to Dismiss the Complaint as to Mortgage Electronic Registration Systems, Inc. (“MERS”) with Prejudice and award MERS such other relief as is just and proper. PHELAN HALLINAN DIAMOND & JONES, PC By: /s/ Sonya G. Chazin____________ Dated: ______ 2016 Sonya G. Chazin, Esquire Attorneys for Defendant, Mortgage Electronic Registration Systems. 6 Case 2:16-cv-03845-KM-JBC Document 30 Filed 12/12/16 Page 9 of 9 PageID: 501 Case 2:16-cv-03845-KM-JBC Document 30-1 Filed 12/12/16 Page 1 of 1 PageID: 502