Russick v. Wells Fargo, Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Pa.February 9, 2017

SL1 1450700v1 104945.00796 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ROSANNE RUSSICK, Plaintiff vs. WELLS FARGO, INC. D/B/A WELLS FARGO HOME MORTGAGE, Defendant : : : : : : : : : : : : : Case No. 2:17-cv-00149-NBF [Electronically Filed] DEFENDANT WELLS FARGO HOME MORTGAGE’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO RULE 12(b)(6) Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Wells Fargo Home Mortgage, an unincorporated division of Wells Fargo Bank, N.A. (“Wells Fargo”), incorrectly identified in the Complaint as “Wells Fargo, Inc. d/b/a Wells Fargo Home Mortgage”, moves to dismiss the Complaint of Plaintiff Rosanne Russick. In support of the Motion, Wells Fargo avers as follows: 1. As more fully set forth in the accompanying Memorandum of Law, which is incorporated herein as though set forth at length, the Complaint should be dismissed in its entirety with prejudice because Plaintiff has failed to state and cannot state any claims against Wells Fargo for which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Procedural History 2. Plaintiff Rosanne Russick (the “Plaintiff” or “Ms. Russick”) commenced this action by filing a complaint (the “Complaint”) against Wells Fargo in the Court of Common Pleas of Lawrence County, Pennsylvania on August 25, 2016, wherein she attempts to assert claims against Wells Fargo for alleged violations of the Equal Credit Opportunity Act, 15 U.S.C. Case 2:17-cv-00149-NBF Document 5 Filed 02/09/17 Page 1 of 4 SL1 1450700v1 104945.00796 -2- §§ 1691 et seq. (the “ECOA”) and the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. (the “FHA”). [Complaint, ¶¶ 3, 19]. 3. On February 2, 2017, Wells Fargo removed the state court action to this Court based upon federal question jurisdiction. [Docket No. 1]. Relevant Facts 4. In December 2003, Joanna L. Gay (“Ms. Gay”) and her brother Richard M. Gay (“Mr. Gay”) purchased real property located at 1506 Jackson Avenue, New Castle, Pennsylvania 16101 (the “Property”). [Complaint, ¶ 4 and Exhibit “S” thereto]. 5. In December 2003, Ms. Gay and Mr. Gay obtained a Loan in the amount of 36,083.00 (the “Loan”) from FirstMerit Mortgage Corporation (“FirstMerit”). [Complaint, ¶¶ 5, 8-9; Mortgage]. 6. To secure their obligation to repay the Loan, on December 29, 2003 Ms. Gay and Mr. Gay executed a mortgage in favor of FirstMerit and granted FirstMerit and its assignees a first lien security in the Property (the “Mortgage”). [Complaint, ¶¶ 5, 8-9; Mortgage]. 7. After the purchase of the Property, Ms. Russick resided there with Ms. Gay and Mr. Gay. [Complaint, ¶¶ 1, 5-6]. 8. The Mortgage was subsequently assigned to Wells Fargo. [Wells Fargo Assignment]. 9. Ms. Russick alleges that after Ms. Gay became married Ms. Gay moved out of the Property because she wanted to purchase a property with her husband but was unable to do so because she was a signatory to the Mortgage. [Complaint, ¶¶ 6-7, 9]. Case 2:17-cv-00149-NBF Document 5 Filed 02/09/17 Page 2 of 4 SL1 1450700v1 104945.00796 -3- 10. As a result, Ms. Russick alleges that she and Ms. Gay agreed that title to the Property would be transferred to Ms. Russick and Mr. Gay and in exchange Ms. Russick would replace Ms. Gay on the Mortgage. [Complaint, ¶ 10]. 11. In the Complaint, Ms. Russick further avers that she and Mr. Gay applied for “the assumption agreement” with Wells Fargo and that Wells Fargo advised Ms. Russick that “she needed a co-signor with assets and a high credit rating to co-sign the [M]ortgage.” [Complaint, ¶¶ 11, 13]. 12. As a result, Ms. Russick alleges that she and her counsel in this action, Richard J. Orloski (“Mr. Orloski”) submitted an assumption application to Wells Fargo. [Complaint, ¶ 14 and Exhibit “A” thereto]. 13. Ms. Russick further contends that Wells Fargo “de facto” denied her application and as a result of the denial of her and Mr. Gay’s application (not Mr. Orloski’s application) Wells Fargo engaged in “illegal age discrimination” in violation of the ECOA and FHA. [Complaint, ¶¶ 19-20]. 14. As a result of this denial, Ms. Russick contends she lost her home, yet in the Complaint she admits that she currently resides at the Property. [Complaint, ¶¶ 1, 20]. 15. Ms. Russick has failed to state and cannot establish an ECOA claim against Wells Fargo because she fails to allege (and cannot establish) that she was qualified to receive the credit she sought and also fails to allege that Wells Fargo treated other non-protected individuals more favorably. See 12 C.F.R. § 1002.2(n); Visconti v. Veneman, 204 Fed. App’x. 150, 154 (3d Cir. 2006); Pettino v. GE Money Bank, Civ. A. No. 10-2569, 2011 WL 1163308, at *3 (E.D. Pa. March 30, 2011). Case 2:17-cv-00149-NBF Document 5 Filed 02/09/17 Page 3 of 4 SL1 1450700v1 104945.00796 -4- 16. Ms. Russick has failed to state and cannot state a FHA claim against Wells Fargo because she has not averred what section of the statute Wells Fargo violated and, in any event, age is not a protected class under the FHA. See Fed. R. Civ. P. 8(a)(2); 42 U.S.C. §§ 3604, 3605, 3606, 3617; Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1955 (2007); Canatella v. Reverse Mortgage Solutions, Inc., Civ. A. No. 13-cv-05937-HSG, 2016 WL 6070508, at *3 (N.D. Cal. Oct. 17, 2016); Logan v. Matveevskii, 175 F. Supp.3d 209, 227 (S.D.N.Y. 2016); Stabley v. Bank of America, N.A., Civ. A. No. 2:11-CV-00635-GMN, 2014 WL 3645237, at *3 (D. Nev. July 22, 2014). WHEREFORE, Defendant Wells Fargo Home Mortgage, an unincorporated division of Wells Fargo Bank, N.A., respectfully requests this Court to grant its Motion to Dismiss, to dismiss the Complaint in its entirety with prejudice and to grant Wells Fargo such other relief as the Court deems appropriate and just. Respectfully submitted, STEVENS & LEE, P.C. Dated: February 9, 2017 By /s/ Steven J. Adams Steven J. Adams, Esquire Attorney I.D. No. 56293 111 N. Sixth Street Reading, PA 19601 Tel.: (610) 478-2133 email: sja@stevenslee.com Attorneys for Defendant Wells Fargo Home Mortgage, an unincorporated division of Wells Fargo Bank, N.A. Case 2:17-cv-00149-NBF Document 5 Filed 02/09/17 Page 4 of 4 SL1 1450700v1 104945.00796 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ROSANNE RUSSICK, Plaintiff vs. WELLS FARGO, INC. D/B/A WELLS FARGO HOME MORTGAGE, Defendant : : : : : : : : : : : : : Case No. 2:17-cv-00149-NBF [Electronically Filed] O R D E R AND NOW, this ___ day of ________________, 2017, upon consideration of Defendant Wells Fargo Home Mortgage’s Motion to Dismiss Plaintiff’s Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Plaintiff’s response thereto, if any, and for good cause shown, it is hereby ORDERED that the Motion is GRANTED and Plaintiff’s Complaint is hereby DISMISSED IN ITS ENTIRETY WITH PREJUDICE. BY THE COURT: _____________________________ FISCHER, J. Case 2:17-cv-00149-NBF Document 5-1 Filed 02/09/17 Page 1 of 1 SL1 1450700v1 104945.00796 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ROSANNE RUSSICK, Plaintiff vs. WELLS FARGO, INC. D/B/A WELLS FARGO HOME MORTGAGE, Defendant : : : : : : : : : : : : : Case No. 2:17-cv-00149-NBF [Electronically Filed] CERTIFICATE OF SERVICE I, Steven J. Adams, hereby certify that Wells Fargo’s Motion to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), the Memorandum of Law in Support thereof and proposed order have been filed electronically and are available for viewing and downloading from the ECF System. I further certify that I caused true and correct copies of the foregoing to be served upon the following via first class mail, postage prepaid, addressed as follows: Richard J. Orloski, Esquire 111 N. Cedar Crest Blvd. Allentown, PA 18104 Attorney for Plaintiff Dated: February 9, 2017 /s/ Steven J. Adams Steven J. Adams Case 2:17-cv-00149-NBF Document 5-2 Filed 02/09/17 Page 1 of 1