Schiano
v.
MBNA

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEYFeb 11, 2013
Civil Action No. 05-1771 (JLL) (D.N.J. Feb. 11, 2013)

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Civil Action No. 05-1771 (JLL)

02-11-2013

ELEANOR AND RALPH SCHIANO, Plaintiffs, v. MBNA, et al., Defendants.


*NOT FOR PUBLICATION

OPINION

I. INTRODUCTION

This matter comes before the Court on the renewed motion of Plaintiffs Eleanor and Ralph Schiano ("Schianos" or "Plaintiffs") to amend their Second Amended Complaint (ECF No. 349). Plaintiffs' previous motion to amend (ECF No. 311) was denied without prejudice because the proposed complaint failed to satisfy Federal Rule of Civil Procedure 8, amongst other deficiencies. August 14, 2012 Order (ECF No. 341) at 4-5. Plaintiffs have refiled their motion and seek to remove several causes of action, add numerous parties to other causes of action, and assert a new quiet title claim against Defendants. The Court has considered the papers submitted in support of and in opposition to the motion. Pursuant to Federal Rule of Civil Procedure 78, the Court did not hear oral argument on the motion. For the reasons set forth below, Plaintiffs' motion to amend is granted-in-part and denied-in-part.

Separate oppositions were filed by Defendant Argent Mortgage Company, LLC (ECF No. 350), Baclays Bank, PLC, d/b/a Homeq Servicing Corporation (ECF No. 352), and Bank of America Corporation (ECF No. 355). Plaintiffs filed three replies (ECF Nos. 351, 353, 357, respectively).

II. BACKGROUND

A. Factual Background

The factual background alone within Plaintiffs' 73-page proposed third amended complaint contains over thirty-five pages and 100 paragraphs. See, generally, Proposed Third Amended Complaint ("PTAC") (ECF No. 349-2). In addition, Plaintiffs have attached more than thirty-five exhibits totaling more than 500 pages to their motion and replies. It is difficult for the Court to distinguish the pertinent facts—those that actually form the basis of Plaintiffs' causes of action—from the voluminous and superfluous background information. The following account is a brief recitation of the facts as alleged in the proposed complaint.

In assessing whether a proposed complaint would be futile a court may consider extraneous documents that are undisputedly authentic if these documents form the basis of the claims. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). The Court has reviewed the exhibits attached to Plaintiffs' motion, Defendants' oppositions, and Plaintiffs' replies. The Court finds that there is no need to rely on any of these exhibits in reaching the merits of the issues before it. Nevertheless, the Court at times throughout this opinion discusses the contents of some of these exhibits only to give context to the underlying facts in order to try and better understand them or to point out incongruities between Plaintiffs' allegations and supposed factual support. Moreover, the Court notes that because such volumes of documents have been discovered by both sides, it appears that this case might be ripe for dispositive motion practice.

Plaintiffs purchased their home in 1987. PTAC ¶ 25. Their home was initially secured with a mortgage from Manchester Financial Group. Id. Between 1987 and now, that mortgage was assigned, reassigned, and refinanced numerous times. PTAC ¶¶ 25-31, 48-56. Plaintiffs devote many paragraphs, some more than a page in length, to detailing the history of the mortgage, including a rigorous history of the corporate identities of the various banks as they were acquired and merged with other entities. Here is a brief recount of the Plaintiffs' mortgage history:

• Manchester assigned the mortgage to Travelers Mortgage service on March 13, 1987. PTAC ¶ 25.
• Plaintiffs refinanced their mortgage with Bay City Mortgage Banker in December 1992. PTAC ¶ 26.
• The mortgage was assigned to "BarclaysAmerican Mortgage Corporation" on February 8, 1993. PTAC ¶ 26.
• The mortgage was assigned to GE Capital Mortgage Services on August 24, 1993. PTAC ¶ 26.
• Servicing rights on the mortgage were assigned to Wells Fargo Home Mortgage in 2000. PTAC ¶ 27.
• Despite the above allegations, Plaintiffs further allege (and seemingly in contradiction to their other allegations) that Bank of America ("BOA") was actually the mortgagee since 1995 (and continues to be) as BOA acquired GE

Capital Mortgage Services that year. PTAC ¶ 28. Plaintiffs also start describing their mortgage as a "Freddie Mac investor loan." Id. As the Court discusses below it is unclear what exactly Plaintiffs are referring to with this description.
• At the end of 2001,"No Data" was reported to credit agencies in regards to payments made on Plaintiffs' mortgage. PTAC ¶ 29.
• Plaintiffs refinanced their mortgage with Columbia Bank in 2002. PTAC ¶ 29.
• Plaintiffs refinanced their mortgage with FGC Commercial Mortgage Finance (referred to by Plaintiffs as Fremont Bank or Freemont Bank, and the Court will refer to the entity as Fremont) in February 2004. PTAC ¶ 43.
• Plaintiffs refinanced their mortgage with Argent on October 8, 2004. PTAC ¶ 48. Argent assigned the mortgage to Ameriquest Mortgage Company allegedly on October 4, 2004. PTAC ¶ 156. Ameriquest Mortgage Company/AMC Mortgage Services serviced this loan. PTAC ¶ 55. Ameriquest was acquired by Citigroup, Inc. in 2007. PTAC ¶ 56.
• Homeq began servicing the mortgage on January 12, 2005. PTAC ¶ 55.
• Ocwen Loan Servicing, LLC assumed Homeq's servicing responsibilities in 2010. PTAC ¶¶ 18, 85.

Plaintiffs allege a number of facts regarding their Argent mortgage being placed into a securitized asset pool of mortgages by Park Place Securities, Inc. ("PPSI"), of which Wells Fargo was trustee. See, e.g., PTAC ¶¶ 50, 51, 73, 74, 80-92. From the proposed complaint, it is unclear the relevance of these allegations to Plaintiffs' causes of action and to the remedies they seek. In its opposition, Argent states that it assigned the mortgage to Ameriquest in October, 2004 and attaches the Assignment of Mortgage to its brief. Argent Opp. (ECF No. 350) at 2; Exh. E to Argent Opp. (ECF No. 350-5) at 2. According to the attached record, Argent assigned the mortgage to Ameriquest on October 14, 2004. Then on "November 24, 2004, Ameriquest sold and assigned Plaintiffs' mortgage loan to Park Place Securities, Inc...Plaintiffs' mortgage loan was thereafter placed into the securitized pool of mortgages known as Series 2004 WHQ2." Id. (citing to Exh. F to Argent Opp. (ECF No. 350-6) at 1).

The Court is merely copying Plaintiffs' designation of the party as stated in Plaintiffs' allegations. The Court makes no finding that Plaintiffs' terminology is correct or that the parties are properly pled. Indeed, a number of Defendants complain that Plaintiffs are simply making up corporate identities, some of which Plaintiffs know to be incorrect. For example, Plaintiffs assert that MBNA is "now Bank of America Corporation" and refers to the combined entities as "MBNA/BOA." PTAC ¶¶ 4, 5. Bank of America disputes this characterization and contends that its answer advised Plaintiffs that "MBNA America Bank, National Association changed its name to FIA Card Services, National Association as of June 10, 2006. FIA Card Services, N.A. issues consumer credit cards, and would be the proper party to name in connection with Plaintiffs' allegations." BOA Opp. (ECF No. 355) at 7. Because these issues are not germane to the matter at hand, the Court need not rule on them and simply uses Plaintiffs' naming conventions for the sake of convenience.

Bank of America vigorously disputes this allegation and argues it is a legal conclusion. Bank of America also maintains it has never had any interest, recorded or otherwise, in any of Plaintiffs' mortgages. BOA Opp. (ECF No. 355) at 18. In support, Bank of America attaches the recordings of Plaintiffs' various mortgages, none of which show any interest by Bank of America in any of Plaintiffs' mortgage. Although Plaintiffs do not dispute these papers, they say that one would not find Bank of America having any such interest through a "simple title search" because "then the fraud could easily be uncovered." Pl. Reply to BOA (ECF No. 357) at 13. The Court does not find it appropriate to address the merits of this argument at this procedural stage. Such arguments are better made in the context of a summary judgment motion.

Plaintiffs also go to great length to show that BOA is a related entity when it became a parent company to GE Capital Mortgage Services. PTAC ¶ 28. They allege that this relationship means that BOA was, and perhaps continues to be, their mortgagee:

By the above stated process, BOA remains plaintiffs' mortgagee, with only subsequent loan false default modifications with Columbia, Fremont and Argent. However, based on demonstrated evidence - BOA may be more than simple "mortgagee" and in fact actually own plaintiffs' property as reflected by Columbia reporting plaintiffs as only "participants on the account."

Id. at ¶ 32. Because BOA allegedly was or remains their mortgagee, Plaintiffs allege that all subsequent refinancings after 2000 were "modifications." Id. at ¶ 31. Plaintiffs neither explain the basis for this conclusory allegation nor explain what effect it has on their mortgages, other than to state that it means BOA is their mortgagee and, somehow, owns their property. Plaintiffs allege that BOA conspired to conceal the fact that it is allegedly the true mortgagee and did so with malice, purpose, and intent. Id. at ¶¶ 131-136; see also Pl. Reply (ECF No. 353) at 6 ("The only delay in this case is due to Homeq/Ocwen and defendant BOA's fraud and fraudulent concealment of ownership of plaintiffs' loan.").

One of many incongruities running throughout the allegations is whether or not Plaintiffs' mortgage (or mortgages) was (or were) in default. Plaintiffs repeat throughout their briefing that their loans were falsely placed in default, yet also describe the loans as current and paid off through the various mortgage refinances as described above. For example, in paragraph 27, Plaintiffs allege the following:

On or about April 20, 2011, plaintiffs discovered through Office [sic] of Comptroller and Currency (OCC) that their Freddie Mac investor loan was (falsely) placed in default in the years 2001 and 2002. Plaintiff [sic] subsequently discovered, which was not disclosed to plaintiffs by defendant BOA, that defendant BOA, and business practice of BANA, was plaintiffs' mortgagee for their Freddie Mac investor loan.

PTAC ¶ 27. Yet at other times, Plaintiffs allege that they never were in default. PTAC ¶ 79 ("Plaintiffs never defaulted on any loan (never missed a mortgage payments)...."). Despite Plaintiffs repeating that the loan was placed in default in 2001 and 2002, Plaintiffs submit evidence to the contrary. The allegations of a default appear to stem from Wells Fargo listing "No Data" on Plaintiffs' payment history:
Wells Fargo had reported "no data" on plaintiffs' Freddie Mac investor loan on plaintiffs' credit reports for the latter months of 2001. On or about April 20, 2011, when plaintiffs discovered that their loan was a Freddie Mac investor loan that had been falsely placed in default, plaintiffs contacted credit reporting agencies as to definition of "no data" reported on their credit reports for their Freddie Mac investor loan by Wells Fargo for latter months of the year 2001, as Freddie Mac requires monthly credit reporting.

PTAC ¶ 29.

The credit report, supplied and relied upon by Plaintiff, as an exhibit to their motion to amend (ECF No. 349-10), shows the "Wells Fargo Home Mortgage" as continuing until February 2002 when it was closed (presumably because it was paid off due to Plaintiffs refinancing with Columbia Bank) and that from July to October of 2001 "No Data" was reported for payment history. The report indicates that the account was in good standing and the status is reported as "Paid, Closed/Never late." Exhibit 11 to Plaintiffs' Motion to Amend (ECF No. 349-10) at 1. Moreover, if this mortgage was in default temporarily, which it never appeared to be, it is unclear how that relates to Plaintiffs' causes of action as the mortgage was closed and paid in full when Plaintiffs refinanced the loan with Columbia Bank, remedying any apparent default.

One of the many exhibits on which Plaintiffs rely is a letter from the Office of the Comptroller of the Currency. Ex. 4 to Pl. Motion to Amend (ECF No. 349-4). Plaintiffs repeatedly cite this as the primary, perhaps sole, source of why they believe their earlier mortgage was in default. See, e.g., PTAC ¶ 38 ("The Office of Comptroller of the Currency (OCC) informed plaintiffs in April 2011 that the plaintiffs are in default on their Freddie Mac investor loan, and that the Loan was instead paid out by 'GE.'"), see also id. at ¶ 28, 29, 34, 36, 56, 65, 71, 78, 79, 89; Pl. Br. (ECF No. 349-34) at 3-7. The Court has reviewed this letter and it does not appear to state what Plaintiffs suggest that it does. See Ex. 4 to Pl. Motion (ECF No. 349-4) at 1. Rather, it says that the OCC has reviewed the presented information and then proceeds to recite certain facts. It is not clear whether these facts were independently investigated by the OCC or merely are restating information that Plaintiffs had provided to the OCC. The letter ends by explaining "As this complaint is against an entity that does not fall under the jurisdiction of our office, we are referring your letter to the appropriate government [sic], the Federal Trade Commission." Therefore, the text of the letter does not suggest that the OCC engaged in independent fact finding. In any event, there are no allegations as to the context of this letter or the relevant history of Plaintiffs' involvement with the OCC in either the proposed complaint or Plaintiffs' moving papers, and the Court places little weight on this letter.

It is not entirely clear what, if any, connection there is between the discursive history of Plaintiffs' home mortgages and the named Freddie Mac investor loan. Plaintiffs do not identify, describe, or define the term. It appears to be another name for Plaintiffs home mortgage, which was perhaps guaranteed by Freddie Mac-although this is not specifically (or at least clearly) alleged. Nor is it entirely clear what precisely Plaintiffs complain about the Freddie Mac loan, other than repeating that it was "falsely placed in default" throughout the proposed complaint as discussed above.

In their identification of the parties, Plaintiffs allege that Freddie Mac was their "investor" and that Plaintiffs had a Freddie Mac investor loan. PTAC ¶ 18. In their reply to Bank of America, Plaintiffs attach an email (Ex. 6, ECF No. 357-6) from a Freddie Mac customer service representative that says "Freddie Mac is the investor on your mortgage...Freddie Mac does not make or originate loans directly to borrowers" then goes on to advise against stopping payment on the mortgage. There is no context or explanation to this email. It is not described who it was sent to, why it was sent, what conversation came before or after, or what mortgage it is referencing. Rather it appears to be a somewhat generic customer service response.

Somewhat separately from the mortgage history, Plaintiffs also allege that certain credit card debt they owed was improperly reported as unpaid or delinquent. Yet Plaintiffs also allege that for a certain time they were unable to make credit card payments because "Ralph Schiano lost his employment due to bankruptcy of manufacturing [sic] textile company, and became ill with significant medical problems." PTAC ¶ 38. The Schianos had several credit cards through MBNA. Around December 2002, plaintiff Ralph Schiano was unable to make the necessary payments. Id. Also around December 2002, MBNA, which was later acquired by Bank of America Corporation ("MBNA/BOA"), agreed to settle an account belonging to Mr. Schiano. Id. at ¶ 39. Nevertheless, MBNA/BOA refused to settle two other accounts in Eleanor Schiano's name. Id. at ¶ 40. The debt was charged off and amounted to more than $28,000. Id. at ¶ 41.

Plaintiffs now argue that they were "unaware of charge off [sic]" and that BOA "fraudulently concealed in this litigation until this time when BOA has finally admitted that those accounts, 0820 and 7541, were charged off." Pl. Reply (ECF No. 357) at 9. The Court is unclear the basis for this argument as it appears from Plaintiffs' own allegations in its proposed complaint (¶ 41) and in its initial complaint (ECF No. 1-1 at ¶ XIII) that the MBNA accounts were charged off.

At issue are accounts 0820 and 7541. These were referred to the National Arbitration Forum ("NAF") for arbitration in March 2003 in accordance with the MBNA credit card agreement. PTAC ¶ 40. Around June or July 2004, the NAF issued arbitration awards in favor of MBNA/BOA for the full amount of the debt, plus attorney's fees. Id. at ¶ 43. Then in July 2004, Pressler & Pressler, as attorneys for MBNA/BOA, commenced debt collection activity. Id. at ¶ 45. According to the proposed complaint, Pressler contacted plaintiffs directly and "threatened plaintiffs that if arbitration awards, approximately $35,000, were not immediately paid, counsel fees and costs would continue to rapidly escalate and that a lien would be placed on plaintiffs' property." Id. In September 2004, Pressler filed an action on behalf of MBNA/BOA in the Superior Court of New Jersey for plaintiffs' account ending in 7451. Id. at ¶ 46. Pressler represented that it would accept only full satisfaction of the debt in settlement and if Plaintiffs complied they "would receive closing documents as to the satisfaction of the debts." Id. at ¶¶ 46-47.

At one point, Plaintiffs allege they were notified of "referral for arbitration in March 2008." PTAC ¶ 39. The Court assumes the Plaintiffs mean March 2003. This is one of several errors in dates throughout the proposed complaint that hinder the Court's understanding of Plaintiffs' Complaint.

The Court ordered Plaintiffs to arbitrate their claims with Pressler and Pressler. ECF No. 345. That arbitration has yet to commence.

On October 8, 2004, plaintiffs allegedly refinanced with Argent Mortgage Company ("Argent") "to pay the MBNA/BOA NAF arbitration awards and MBNA/BOA debt in full," approximately $29,000. PTAC ¶ 48. This amount was for less than the arbitration award of $35,000. Plaintiffs also allege that the payment of approximately $29,000 to MBNA/BOA is reflected on the mortgage HUD Statement as paid to creditor MBNA/BOA through MBNA/BOA's attorney, Pressler. Id. Further, Plaintiffs claim that Pressler acknowledged full satisfaction of the debt. Id. at ¶ 57. Plaintiffs made this payment to settle the ongoing claims of MBNA. Plaintiffs claim that they discovered in January 2005 that their credit reports erroneously reflected that Eleanor Schiano's two MBNA/BOA accounts were "unpaid and delinquent." Id. at ¶ 58. In addition, the reports reflected that the MBNA/BOA account numbers were changed to account numbers ending in 1924 and 2141. Id. Plaintiffs allege that these were the numbers given to the accounts after they had been charged off. Id. at ¶ 40. This accords with Bank of America's representation that it is a standard accounting practice to create new account numbers after debt is charged off. BOA Opp. (ECF No. 355) at 10. But, Plaintiffs allege, it was error for their credit reports to include both the original account numbers, 0820 and 7541, as well as the "fictitious" ones. Id. at ¶ 58. Plaintiffs disputed their credit reports with all credit reporting agencies and contacted MBNA/BOA and Pressler. Id. at ¶ 59. The credit reporting agencies verified this information as accurate. Id. Plaintiffs further allege they were unable to refinance their mortgage—although they do not specify which mortgage they were attempting to refinance—because of the outstanding MBNA debt. Id. at ¶ 66. Somewhat incongruously, however, Plaintiffs also allege that they were able to refinance with Fremont Bank and then with Argent, as discussed above, subsequent to this debt being charged off.

Defendant Pressler & Pressler filed an affidavit that the delinquent accounts were settled and payment was collected. Affidavit of Gerald Felt (ECF No. 21-1) ("Felt Aff."). In particular, the Schianos owed $22,216.65 on the 0820 account and $13,154.70 on the 7451 account. Felt Aff. at ¶¶ 6, 8. Those accounts were settled for $17,800 and $11,065 respectively. Id. at ¶ 9. The proceeds, less Pressler's court costs, were paid to Wolpoff & Abramson, LLP, which had been retained by MBNA to collect the debts. Affidavit of Chad Lawyer (ECF No. 21-3) ("Lawyer Aff.") at ¶¶ 5-7. Wolpoff & Abramson then wired these funds to MBNA. Id. at ¶ 8. In its opposition, Bank of America states that it cannot report to the credit agencies that the Schianos paid their debt in full because the account was settled for less than the amount owed, nor can they report that the accounts were current as they had to be closed and charged off due to delinquency. BOA Opp. (ECF No. 355) at 12. This representation appears to accord with Plaintiffs' own allegations, as discussed above. Bank of America notes, correctly, that the credit reports submitted and relied on by the Schianos do not state that the accounts are "unpaid," as Plaintiffs allege, but rather report the debt as "settled - less than full balance" and "legally paid in full for less than the full balance." Exhibit 4 to Pl. Reply (ECF No. 357-4) at 6-13.

Plaintiffs sought, once again, to refinance their mortgage in 2008. PTAC ¶ 66. This was three years after this matter was initially commenced and four years after settling with MBNA. Plaintiffs allege that due in part to Plaintiffs' credit report showing the prior delinquencies on the MBNA credit card account, Commerce Bank denied Plaintiffs' request for refinancing. Id. at ¶ 67.

Plaintiffs also make a number of allegations as to their 2004 refinancing with Argent. For example, they claim that the creditor was not properly named (PTAC ¶ 51), that the payment schedule is inaccurate because it did not include the "largest and small payments in the series or a reference to the variations in the other payments in the series" (PTAC ¶ 52), that the Notice of Right to Cancel was improper (PTAC ¶ 51), that later assignees of the servicing rights failed to report monthly payments (PTAC ¶ 83), that servicers are improperly reporting dual mortgages (PTAC ¶ 81), and that later assignments were invalid (PTAC ¶ 74). Apparently due to these issues as well as the alleged BOA conspiracy to secretly become mortgagee to Plaintiffs' property, Plaintiffs allege "that they are no longer the owners, or at least sole owners, of their home." PTAC ¶ 100. Therefore, in addition to other damages, they seek a rescission of their Argent refinancing and all other subsequent assignments. Id. at ¶ 101.

B. Procedural Background

The Court briefly addresses the procedural history of this matter. A fuller explanation is laid out in its August 14, 2012 Report and Recommendation. ECF No. 339; see also Sept. 17, 2012 Order, ECF No. 345 (adopting report and recommendation). On April 4, 2005, Plaintiffs filed a complaint against MBNA, Wolpoff & Abramson, Gerald Felt, Esq., and the National Arbitration Foundation ("NAF"). ECF No. 1. They filed an Amended Complaint on May 16, 2005. ECF No. 8. Plaintiffs' Amended Complaint alleged violations of the Fair Debt Collection Practices Act, Federal Arbitration Act, Fourteenth Amendment, New Jersey Consumer Fraud Act, and Fair Credit Reporting Act, along with common-law fraud, defamation, and emotional distress. ECF No. 8. On December 20, 2005, United States District Judge Jose L. Linares adopted Magistrate Judge Hedges's Amended Report and Recommendation and dismissed Plaintiffs' Amended Complaint against defendant NAF. ECF No. 45. By separate Opinion and Order, Judge Linares affirmed Magistrate Judge Hedges's denial of Plaintiffs' motion to amend the Complaint. See Order and Op., Dec. 20, 2005, ECF No. 44.

On August 28, 2007, the Court dismissed Plaintiffs' case without prejudice, finding that all of Plaintiffs' claims were subject to arbitration, but neither party had initiated arbitration. Aug. 28, 2007 Order (ECF No. 77). The Court explained that, since "neither party seem[ed] inclined to proceed via arbitration," staying the case would serve no judicial purpose. Id. at ¶ 5. Plaintiffs immediately filed a motion for reconsideration. ECF No. 78. In January 2008, the Court granted Plaintiffs' motion for reconsideration and reopened the case because Plaintiffs' counsel represented that arbitration had, in fact, commenced. Jan. 24, 2008 Order (ECF No. 81) at ¶ 3. The Court reminded the parties of its prior holding that all of Plaintiffs' claims were subject to arbitration and that the Court would take no further action in the matter until arbitration was completed. While Plaintiffs' motion for reconsideration was pending, Plaintiffs filed a new complaint against Bank of America, Barclays Bank PLC, Wolpoff and Abramson, LLP, and Citigroup Inc., under Civil Action Number 07-4869, and filed an Amended Complaint in that action on November 26, 2007. See Schiano v. Bank of Am. Corp., Civ. No. 07-4869 ECF Nos. 1 and 3. According to Plaintiffs, the new complaint addressed new claims and, since the Court had dismissed the original case, Civil Action Number 05-1771, Plaintiffs had to file the new complaint because the "statutes of limitations as to some of plaintiffs' new claims would have expired." ECF No. 16. at 1. The Court determined that the claims raised in the new complaint were duplicative of those raised in this matter, Civil Action Number 05-1771, and terminated the 07-4869 action. March 10, 2008 Letter Opinion, No. 07-4869, ECF No. 49. Plaintiffs filed a motion for reconsideration. No. 07-4869, ECF No. 51. The Court denied Plaintiffs' motion, but "in the interests of justice, and the Court's inherent authority to manage its docket," the Court allowed Plaintiffs to amend their complaint in this matter "to include any claims raised in Civil Action No. 07-4869." March 31, 2008 Order, No. 07-4869, ECF No. 57.

On April 15, 2008, Plaintiffs filed a Second Amended Complaint adding new parties and claims. ECF No. 84. The Defendants filed motions to dismiss and Plaintiffs filed a cross-motion to vacate the Court's December 2005 Order. ECF Nos. 90, 100, 103, 108, 110. On August 8, 2008, the case was referred to mediation, and all proceedings were stayed for ninety days pending the outcome. ECF No. 143. In October 2008, Plaintiffs notified the Court that mediation was unsuccessful and the NAF had "failed to arbitrate the matter," so they would be renewing their motion to vacate the Court's December 2005 Order. ECF No. 145. On October 16, 2009, the Court ordered the parties back to mediation. ECF No. 280. On January 8, 2010, the Court administratively terminated Plaintiffs' motion for leave to file a Third Amended Complaint. ECF No. 283. The Court noted that Plaintiffs could reinstate the motion if mediation was not successful. Id.

In its Order, the Court noted that the claims which had previously been found to be subject to arbitration remained stayed and were not to be the subject of the mediation. Order at 1 n.1, ECF No. 143.

After the parties were ordered to proceed to mediation, the Court amended the deadline by which Plaintiffs were permitted to re-file any motion to vacate the Court's December 2005 Order. Nov. 5, 2009 Order (ECF No. 282). The Plaintiffs were ordered to re-file their motion only "if the NAF indicate[d] that it [was] unwilling to unable to proceed with the arbitration or if the arbitration before the NAF ha[d] not been set for hearing through no fault of Plaintiffs within 60 days of completion of mediation." Id. A docket entry dated November 3, 2010 noted that mediation was unsuccessful.

On September 24, 2010, the Court entered a Consent Order that vacated its December 2005 Order compelling arbitration, and reinstated Plaintiffs' claims for violations of the Fair Debt collection Practices Act, Federal Arbitration Act, Fourteenth Amendment, New Jersey Consumer Fraud Act, and Fair Credit Reporting Act, common-law fraud, defamation, and emotional distress. ECF No. 296. On August 1, 2011, Plaintiffs settled their disputes with Wolpoff & Abramson. ECF No. 306.

On August 15, 2012, the matter was reassigned to the Undersigned and a telephone status conference was held with the parties on October 12, 2011. On March 6, 2012, Plaintiffs moved to amend the Second Amended Complaint. ECF Nos. 311, 314. The Court denied the request without prejudice finding that the proposed complaint (1) was "replete with legal conclusions and argument as well as confusing factual descriptions that have questionable relevance to the claims asserted or sought to be asserted;" (2) that it failed "to clearly designate which new claims are alleged against which specific party or parties;" and (3) that it failed "to properly or specifically identify the parties that plaintiffs seek to add to this action, or which claims are asserted against those new parties." ECF No. 341 at 1. Because of these and other deficiencies, the Court found that Plaintiffs' proposed complaint failed to meet the basic notice pleading requirements of Federal Rule of Civil Procedure 8 and granted Plaintiffs another opportunity to move to amend in order to address the errors discussed by the Court, at length, in its Order.

III. DISCUSSION

The Court notes at the outset that Plaintiffs' proposed third amended complaint is, even more so than before, unnecessarily long and confusing. Plaintiffs' proposed complaint presents more than 100 paragraphs alleging various facts in no logical order, and often seemingly untethered to any cause of action. For example, a number of allegations concern the procedural history of this lawsuit. PTAC ¶¶ 68-71, 75, 76. The proposed complaint continues to intertwine legal arguments and irrelevant facts with allegations apparently meant to give rise to Plaintiffs' new claims. In addition, Plaintiffs' proposed complaint continues to include defendants that have been dismissed from the action. PTAC ¶¶ 6, 8 (noting that Wolpoff & Abramson "was terminated in 2011 via Consent Judgment" and that the NAF "was dismissed as a defendant through court order in December 2005"). The PTAC lacks organization and presents new facts in no logical manner. Further, the proposed complaint mixes factual assertions with legal conclusions (see, e.g., PTAC ¶¶ 60, 95, 106, 125, 130, 157), repetitive statements (see, e.g., PTAC ¶¶ 67, 80, 125, 126) and references to seemingly irrelevant matters (see, e.g., PTAC ¶¶ 49, 68-70, 72, 75, 76, 93). A proper complaint should contain none of these things.

As noted above, the Court previously denied Plaintiffs' motion without prejudice in order to give the Schianos yet another opportunity to amend, albeit with specific instructions to make clear which claims were being asserted specifically against which defendants, and the specific factual basis for each claim against each defendant, as well as the specific relief being sought and the grounds for that relief. Rather than add clarity, Plaintiffs' new proposed complaint leaves unaddressed many of the deficiencies that compelled the Court to deny Plaintiffs' prior motion.

The Court also ordered Plaintiffs to supply a chart that listed: "(1) the cause of action alleged and, for each statutory cause of action, the specific statute(s) allegedly violated; (2) every defendant that is named in the particular count, with a citation to the corresponding factual allegations against each defendant for that count; (3) a concise statement of facts showing that plaintiffs are entitled to relief from each proposed new defendant, with a citation to the corresponding allegations against that defendant in the Third Amended Complaint; (4) the relief sought; and (5) the specific legal grounds or authority for that relief including, for each statutory cause of action, the specific statute(s) on which plaintiffs rely." August 14, 2012 Order (ECF No. 341) at 5-6. The Plaintiffs supplied a chart (and several "revisions" to that chart) that lists the cause of action and the statutes allegedly violated, along with the proposed new defendants, and a cursory description of the relief sought. ECF Nos. 349-1, 351-1, 353-1, 357-1. It lists citations to numerous paragraphs in the complaint, presumably the factual support for the claims against each defendant, but many of the citations appear unrelated or the citations are so voluminous making them unhelpful. It does not contain a concise statement of facts supporting the cause of action, a citation to factual allegations supporting those facts, or the specific relief sought from each defendant with appropriate citations. Plaintiffs' counsel in this matter has been sanctioned previously for violating the Court's orders. July 3, 2009 Order (ECF No. 248). If Plaintiffs choose not to spend the time and effort making clear the factual bases for their causes of action as against each particular party and the particular remedies Plaintiffs seek, it is not incumbent on the Court to do so for them.

A. Proposed Amendments

Plaintiffs' motion appears to request leave to amend the Second Amended Complaint to add the following new defendants: (1) Wells Fargo Bank, N.A. ("Wells Fargo") (PTAC ¶ 12); (2) Park Place Securities, Inc. ("PPSI") and PPSI Series 2004 WHQ2 (Id. ¶ 13); (3) Ameriquest Mortgage Company ("Ameriquest") and AMC Mortgage Services, Inc. ("AMC") (Id. ¶ 14); (4) ACC Capital Holdings Corporation ("ACC") (Id. ¶ 15); (5) FGC Commercial Mortgage Finance d/b/a Fremont General Corporation ("Fremont") (Id. ¶ 16); (5) Federal Home Loan Mortgage Company ("Freddie Mac") (Id. ¶ 17); (6) Fidelity National Financial, Inc. ("Fidelity") (Id. ¶ 18); (7) Ocwen Loan Servicing, LLC ("Ocwen") (Id. ¶ 19); (8) TransUnion (Id. ¶ 20); (9) Equifax (Id. ¶ 21); (10) Experian (Id. ¶ 22) (TransUnion, Equifax, and Experian are referred to collectively as the "credit agencies"); and (11) Columbia Bank (Id. ¶ 23).

The caption of Plaintiffs' PTAC makes identifying the new defendants even more difficult because it includes descriptions of various entities. For example, part of the caption names:

WELLS FARGO BANK, N.A., and also d/b/a/ Wells Fargo Home Mortgage, and also d/b/a as Trustee to Park Place Securities, Inc. (PPSI), Series 2004 WHQ2, and as Trustee to unidentified depositor to 2004 WHQ2, and servicer to mortgagee Bank of America Corporation and investor Freddie Mac, and Master Servicer to Fremont Trust.


In particular, Plaintiffs seek to add Ocwen as a named defendant to Counts 1 and 7, and the credit agencies and Pressler and Pressler to Count 7 for violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq. Plaintiffs seek to add Wells Fargo, PPSI, Freddie Mac, Commercial Bank, Ameriquest, AMC, ACC, Fremont, Fidelity to Counts 8 through 11. In addition, Plaintiffs seek to add a new count for quiet title against MBNA/BOA, Argent Mortgage and Citigroup, Wells Fargo, Barclays Bank, PPSO, Ameriquest, AMC, ACC, and Fremont. Pl. Br. (ECF No. 349-34) at 23 ("Other than Quiet Title, there are no new Counts in TAC, only additional facts discovered by plaintiffs.").

The Court ordered the claims as to Pressler and Pressler be arbitrated. ECF No. 345. Plaintiffs and Pressler and Pressler have reported that they continue to meet and confer in anticipation of arbitration. ECF No. 364.

After a thorough review, the general tenets of Plaintiffs' proposed complaint appear to follow two themes, one relating to their mortgages and the other related to their prior bad debt, which they settled with MBNA. As to the first, the Court gleans the following (1) Plaintiffs allege that their home mortgage (or Freddie Mac investor loan) was falsely placed in default, although it is not clear what effect, if any, this had on Plaintiffs' subsequent mortgages; (2) there are several alleged inconsistencies or irregularities in the reporting of Plaintiffs' mortgages and in the refinancing efforts, thereby creating an alleged concern by Plaintiffs that they are no longer the sole owner of their property; and (3) therefore, Plaintiffs seek a rescission of their prior refinancing efforts as well as damages. As to the second theme, the Court reads the proposed complaint as alleging: (1) Plaintiffs settled with MBNA for the entire debt from the credit cards on which they admittedly defaulted; (2) Plaintiffs believe their credit reports should reflect this as paid in full, therefore it is inaccurate for the credit report to note anything other than being paid in full; (3) the credit agencies verified this information as accurate although Plaintiffs believe it is inaccurate; and (4) as a result of this information, Plaintiffs are unable to refinance their mortgage.

B. Discussion

In pertinent part, Rule 15 provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a). The federal rules allow for liberal amendments in light of the "principle that the purpose of pleading is to facilitate a proper decision on the merits," and provide that if the underlying facts relied upon by a party might be a proper subject of relief, that party should have the opportunity to test its claims on the merits. Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal quotations omitted).

The United States Supreme Court has stated that leave to amend under Rule 15 may be denied in cases of: (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice to the opposing party; or (4) futility of amendment. See Foman, 371 U.S. at 182. However, where there is an absence of undue delay, bad faith, prejudice or futility, leave to amend a pleading should be liberally granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004); see also Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006) (stating that "[l]eave to amend must generally be granted unless equitable considerations render it otherwise unjust"). The decision to grant leave to amend rests in the sound discretion of the Court. See Heyl & Patterson Int'l, Inc. v. F.D. Rich Hous. of V.I., Inc., 663 F.2d 419, 425 (3d Cir. 1981).

C. Procedural Defects

The Court has already found that significant procedural defects make it impossible for the Court, or the parties, to respond to the Plaintiffs' allegations. August 14, 2012 Order (ECF No. 341). Plaintiff has not sufficiently cured these defects. In many ways, the latest iteration of the proposed complaint only exacerbates the Court's earlier frustrations. Even after a lengthy review, the Court cannot clearly identify precisely what factual allegations are pertinent to what causes of action, and what factual support there is to assert causes of action against the proposed new defendants. In an accompanying chart, Plaintiffs cite to numerous paragraphs in their proposed complaint for each defendant and for each cause of action, yet many of these referenced allegations seem inapposite to the claim or to the party. For example, in the chart, Plaintiffs list the following paragraphs to support its allegations against the credit reporting agencies (Experian, TransUnion, Equifax) for its Fair Credit Reporting Act claim (Count Seven): paragraphs 29, 40-50, 54, 57-68, 72-76, 80, 83, 85, 89, 91-98, 100-101. The Court has reviewed those forty-three paragraphs and found that only paragraphs 29, 50, 58, 59, 62, and 80 mention the credit reporting agencies and most do so only as a passing reference. None allege any bad conduct on the part of the credit reporting agencies and only reference that certain information on Plaintiffs' credit scores were disputed and the credit agencies investigated and verified the information. Thus, Plaintiffs' chart does not assist the Court to understand whether the proposed complaint sufficiently states "the 'grounds' on which the claim[s] rest[]." See Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).

Plaintiffs interpret the Court's prior order as follows: "The Court had difficulty ascertaining which claims were versus a particular defendant, and which defendant(s) plaintiffs were seeking to add to the action." Pl. Reply to Argent Opp. (ECF No. 351) at 9. As discussed above, the difficulty of determining which defendant was implicated by which cause of action was one of several substantial issues that the Court outlined in its August Order.

A civil complaint must meet the requirements set forth in Rule 8 of the Federal Rules of Civil Procedure which provides that "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The rule also provides that "[e]ach allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). See also Twombly, 550 U.S. at 555 ("Federal Rules of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.") (quotations and citation omitted). "Taken together, Rules 8(a) and 8(d)(1) underscore the emphasis placed on clarity and brevity by the federal pleadings rules." Binsack v. Lackawanna County Prison, et al., 438 Fed. App'x. 158 (3d Cir. July 21, 2011) (quoting In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 1996)). A complaint which is "so excessively voluminous and unfocused as to be unintelligible" does not comply with these rules. Id. Further, "incoherently stated claims are inadequately pled, and therefore, do not afford proper notice to Defendants as to the claims it must defend against, in violation of Rule 8(a)." Rhett v. New Jersey State Superior Court, et al., No. 07-2303, 2007 U.S. Dist. LEXIS 44229, at *9 (D.N.J. June 14, 2007), aff'd Rhett v. N.J. State Superior Court, 260 F. App'x 513 (3d Cir. 2008); see also Manley v. Navmar Applied Scis. Corp., No. 12-5493, 2012 U.S. Dist. LEXIS 163018, at *8 (E.D. Pa. Nov. 14, 2012) (dismissing a complaint for failure to abide by Rule 8 when it "comprise[d] 23 pages of single-spaced type consisting of rambling and unclear language, throughout which references to federal and state statutes and causes of actions are interspersed"); Hantzis v. Pa. Ins. Comm'r Koken, No. 12-1412, 2012 U.S. Dist. LEXIS 158640, at *21 (M.D. Pa. Oct. 12, 2012) (dismissing a complaint when the "pleadings set forth no well-pleaded, or intelligible, factual narrative thread").

The Court has discussed at length above and in its prior orders the deficiencies with Plaintiffs' proposed complaint. It is anything but simple, concise, or direct. Rather, it is similar to the complaint at issue in both Binsack and Rhett: "excessively voluminous and unfocused as to be unintelligible." See Binsack, 4389 Fed. App'x at 160. And similar to the complaints in those matters, it defies "any attempt to meaningfully answer or plead to it." Id. The Court has given Plaintiffs ample opportunity to comply with Rule 8, but they have failed to do so. Being that Plaintiffs' previous attempt to amend was denied for these same reasons, dismissal with prejudice for failure to comply with Rule 8 is appropriate. Rhett, 2007 U.S. Dist. LEXIS 44229 at * 14 ("Because Plaintiff's third attempt in drafting a complaint is no more compliant with Rule 8(a) than it was when originally filed, the Court finds that dismissal of the Second Amended Complaint, with prejudice, is warranted."); see also Hantzis, 2012 U.S. Dist. LEXIS 158640, at *21 ("In this case, Hantzis was provided such an opportunity but has failed to amend his complaint in a fashion which meets the strictures of Rule 8. Therefore, dismissal of the complaint with prejudice is now warranted."); Meza-Role v. Partyka, No. 11-2307, 2012 U.S. Dist. LEXIS 89101, at *4 (D.N.J. June 25, 2012) ("A district court is not required to grant leave to amend a complaint if it becomes clear that the plaintiff cannot, or will not, properly cure the complaint.").

Plaintiffs attempt to distinguish these cases based on their facts, in particular that plaintiffs in both cases were pro se. Pl. Reply to Argent Opp. (ECF No. 351) at 11. These are factual differences without a distinction. It is not material here that the complaints in Binsack or Rhett were related to prisoner complaints or authored by a party appearing pro se; it is material that the complaint here is so long with irrelevant factual material and poorly drafted as to be "unintelligible."

Nor do Plaintiffs recognize any deficiency in their proposed pleading as they repeatedly state that it is concise and clear: "This matter is now in year number eight. Over the years, new facts have emerged that were concealed from the plaintiffs. This matter is an extremely complex case with intertwined facts and defendants. Plaintiffs' Third Amended Complaint is well within FRCP 8(a) and (d) requirements as each paragraph is a 'concise statement of Plaintiffs' claims.' Due to defendants' actions, the matter is complex and intertwined among defendants. Nevertheless, plaintiffs' statement is concise." Pl. Reply to Argent [ECF No. 351] at 8, see id. at 9 ("Plaintiffs have removed any allegations that could be conceived as legal conclusion or that have questionable relevance to the claims asserted. The plaintiffs have focused on the facts-and only the facts."); see Pl. Reply to BOA (ECF No. 357) at 5 ("Plaintiffs TAC is neither vague or ambiguous"). The Third Circuit has noted that when a party states that they could not be "any clearer" yet proposes an unintelligible complaint then granting further leave to amend is possibly futile. Rhett v. N.J. State Superior Court, 260 Fed. Appx. 513 (3d Cir. 2008) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); In re Westinghouse Sec. Litig., 90 F.3d 696, 702-4 (3d Cir. 1996)).

Similarly, Plaintiffs' proposed complaint fails to comply with Rule 10(b) for the same reasons. Rule 10(b) requires that "each claim founded on a separate transaction or occurrence ... must be stated in a separate count" if doing so would promote clarity. Fed. R. Civ. P. 10(b). The Court has discretion to dismiss the complaint that does not comply with Rule 10(b). Coleman v. Camacho, No. 10-2163, 2012 U.S. Dist. LEXIS 168443, at *6-7 (D.N.J. Nov. 27, 2012); Borrell v. Weinstein Supply Corp., No. 94-2857, 1994 U.S. Dist. LEXIS 13741, at *2 (E.D. Pa. Sept. 27, 1994) ("Where a complaint fails to comply with Rule 10(b), dismissal of the complaint is within the court's discretion."). Many of Plaintiffs' factual allegations are lumped together into the same paragraphs often with no obvious connection with each other. See, e.g., PTAC ¶¶ 25, 26, 28-34, 36-38, 40-62, 73-86, 91-101. Adding to the confusion is the manner in which Plaintiffs plead the parties, often naming a defendant as well as numerous entities and subsidiaries. For example, Bank of America is pled as "and also d/b/a Banc of America Securities, LLC, and also d/b/a as Bank of America, N.A. by mortgage business practice, and as successor(s) by merger to Arbor National Holdings (Arbor) including Arbor's acquisition of GE Capital Mortgage Services, and as successor by merger to MBNA CORPORATION." PTAC ¶ 5. Not only is this unintelligible it creates significant difficulty for the proper Bank of America entity or entities to respond to the allegations. Moreover, as Bank of America argues, this allegation is incorrect and Bank of America does not do business as the named entities. BOA Opp. (ECF No. 355) at 7-8, see also Certification of Kellie Lavery in support of Opp. (ECF No. 355-1).

D. Futility

Moreover, to the extent the Court can separate the relevant allegations from the irrelevant and understand Plaintiffs' meaning, the proposed amendments must be denied because they 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 and quotations omitted). "However, given the liberal standard for the amendment of pleadings, courts place a heavy burden on opponents who wish to declare a proposed amendment futile." Aruanno v. New Jersey, No. 06-0296, 2009 WL 114556, at *2 (D.N.J. Jan. 15, 2009). Therefore, "[i]f a proposed amendment is not clearly futile, then denial of leave to amend is improper." 6 Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE § 1487 (3d ed. 2012) (emphasis added). In determining whether an amendment is insufficient on its face, the Court employs the Rule 12(b)(6) motion to dismiss standard. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citations omitted). The question before the Court, therefore, is not whether the movant will ultimately prevail. Rather, it is whether the plaintiff is able to articulate "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007).

"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). While detailed factual allegations are not necessary to survive a Rule 12(b)(6) motion, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels[,] conclusions, and a formulaic recitation of the elements of a cause of action" and demands that the "[f]actual allegations . . . be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (citations omitted); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the Twombly pleading standard "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]") (quotations and citations omitted).

When examining the sufficiency of a litigant's pleading under Rule 12(b)(6), "all well-pleaded allegations of the complaint must be taken as true and interpreted in the light most favorable to the plaintiffs, and all inferences must be drawn in favor of them." Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 158 (3d Cir. 2010). However, the Supreme Court has clarified that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. In addition, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. Thus, a court evaluating a complaint under the 12(b)(6) standard "can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. In making these determinations, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if these documents form the basis of the claims. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d at1426(stating general rule that in applying the 12(b)(6) standard, a district court "may not consider matters extraneous to the pleadings.").

I. Withdrawn Allegations

Plaintiffs' PTAC does not include claims under the Fourteenth Amendment, RICO, and civil conspiracy, which were alleged in the Second Amended Complaint. No defendants object to these claims being withdrawn. Thus, the Court finds that these claims have been withdrawn from the SAC, and will grant the motion to amend to exclude these claims.

ii. New Allegations

(1) Violations of the FDCPA (Count One)

Plaintiffs apparently seek to add Ocwen to its claim for violation of the Fair Debt Collection Practices Act ("FDCPA") (Count One), although they also claim that they seek to add no new parties to Count One. See Revised Chart, 357-1, Column 1 ("Ocwen not new by APA"). Here is how Plaintiffs attempt to resolve this apparent discrepancy:

Plaintiffs were able to obtain, on their own, the APA between Barclays and Ocwen for the sale of Homeq by Barclays to Ocwen, Exhibit 25. According to the APA, the naming of Ocwen in the TAC is unnecessary as Ocwen was to take over all exising [sic] litigation by the APA (schedule of existing litigation is not attached to APA as required). Barclays/Homeq failed to inform the Court of this Agreement. Further, Barclays/Homeq did not respond to plaintiffs' Interrogatories discovery request.

Pl. Br. (ECF No. 349-34) at 24. And while Plaintiffs do not acknowledge it in their chart or their brief, they also seek to add Homeq to this matter. See PTAC Count One, ¶ 106 ("Defendants Homeq and Ocwen have violated the FDCPA...").

The PTAC claims that Ocwen is Plaintiffs' current loan servicer and successor in interest to Plaintiffs' prior loan servicer, Homeq Servicing. PTAC ¶ 19. Specifically, Plaintiffs allege that defendants "Homeq and Ocwen have violated the FDCPA by failing to identify plaintiffs' current mortgage lender/creditor, and original creditor, accurate status and amount of debt owed, and failing to provide valid mortgage assignments and servicing rights assignments, and debt validation notice to plaintiffs." PTAC ¶ 106.

Defendant Barclays Bank PLC d/b/a Homeq ("Homeq") argues that Plaintiffs' FDCPA claim fails because (1) Homeq, as a "loan servicer," is not a "debt collector" subject to liability under the FDCPA; (2) none of the allegations made against Homeq constitute a violation under the FDCPA ; and (3) the FDCPA claim is time barred. Homeq Opp. (ECF No. 352) at 5. Plaintiffs counter that "Homeq/Ocwen, as servicers, have been collecting a [false] default" thus "they are subject to the FDCPA as the debt was in false default at the time it was obtained." Pl. Reply to Homeq Opp. (ECF No. 353) at 7.

"A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. The parties dispute whether Homeq and Ocwen qualify as "debt collectors." Under the FDCPA, a debt collector is "any 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 another." 15 U.S.C. § 1692a(6). The term debt collector does not include "any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person." § 1692a(6)(F)(iii). Pursuant to the statute, mortgage servicers, such as Homeq and Ocwen, are exempt from the FDCPA if the mortgage was not in default at the time they began servicing the loan. See Tutanji v. Bank of America, No. 12-887, 2012 WL 1964507, at *3 (D.N.J. May 31, 2012) (finding that "servicers of residential mortgages have been consistently found by courts not to be 'debt collectors' under the FDCPA if the loan in question is not in default when acquired by the servicer"); see also Stolba v. Wells Fargo & Co., No. 10-cv-6014, 2011 WL 3444078, at *2 (D.N.J. Aug. 8, 2011) ("[T]he servicer of a residential mortgage loan is not a 'debt collector' if the loan in question is not in default when acquired by the servicer."); Scott v. Wells Fargo Home Mortg. Inc., 326 F. Supp. 2d 709, 718 (E.D. Va. 2003) ("[T]he law is well-settled . . . that . . . mortgage servicing companies are not debt collectors and are statutorily exempt from liability under the FDCPA.") (emphasis in original).

Plaintiffs respond to Homeq's arguments by referencing a number of factual allegations that the Court finds have no bearing on this direct issue. For example:

In January 2005, Homeq advised plaintiffs that their creditor was "Ameriquest," Exhibit 17 to initial motion. This did not change. On July 31, 2008, plaintiffs requested debt validation and identity of creditor, attached Exhibit 4. In response to inquiry, Homeq faxed over same response (January 2005) identifying "Ameriquest" as plaintiffs' creditor, Exhibit 17 to initial motion. Ocwen sent debt validation notice in September 2010 that did not identify creditor, Exhibt [sic] 33 initial motion. Plaintiffs then requested debt validation, Exhibit 33 to initial motion. Ocwen did not respond. Plaintiffs request second debt validation in December 2010, attached Exhibit 5, with no response from Ocwen. The March/April 2009 assignments are invalid, Exhibit 21 to initial motion, and were not recorded until May 2009. Commonwealth Title has deemed the assignment invalid, Exhibit 22 to initial motion. Even assuming the March/April 2009 assignment are valid (which are not), plaintiffs' creditor, according to Homeq, from 2005 through March/April 2009 was "Ameriquest." Barclays/Homeq does not inform the Court that the December 2010 Ocwen assignment, Exhibit 32 to intial [sic] brief, now eliminates the depositor, Park Place Securities, Inc. (PPSI), from the assignment. PPSI is gone.

Pl. Reply (ECF No. 353) at 7-8 (errors in original). While these allegations might go to whether the mortgages were proper, they do not address whether Homeq and Ocwen are debt collectors under the FDCPA.

To that question, Plaintiffs provide the following conclusory argument: "Ocwen has assessed collection costs against plaintiffs that are not legally due under the mortgage contract or applicable law . . . which makes Ocwen a default debt creditor who acquired the debt while in default and thus subject to the FDCPA." Pl. Reply (ECF No. 353) at 8. In their proposed complaint, Plaintiffs allege that Ocwen assessed collection costs of $1,170. PTAC ¶ 94. Apparently, Plaintiffs claim that these assessed fees are "evidence that Homeq acquired the debt in default is therefore subject to the FDCPA." Pl. Reply (ECF No. 321) at 7. The Court disagrees.

First, there is absolutely no support in Plaintiffs' own allegations that their current loan-the loan being serviced by Ocwen, and by Homeq previously-has ever been in default. Plaintiffs do allege that a prior mortgage was in default in 2001, although as the Court discussed above, the documentation that Plaintiffs provide significantly undermines that argument and it is irrelevant to the current mortgage. And Plaintiffs' proposed complaint plainly states that Plaintiffs have never defaulted or missed a payment on any of their mortgage loans since purchase of their home. PTAC ¶¶ 29, 78. Furthermore, Plaintiffs' argument amounts to nothing more than showing that "collection fees" were applied to Plaintiffs' account. This is not enough to find that either Homeq or Ocwen are debt collectors within the meaning of the FDCPA. Therefore, allowing Plaintiffs leave to amend the complaint to include these Defendants to Count One would be futile.

(2) Violations of the FCRA (Count Seven)

Plaintiffs' motion to amend seeks to add claims under the FCRA against Homeq and proposed new defendants Ocwen, Ameriquest, AMC, Transunion, Equifax, and Experian. PTAC ¶¶ 123-127.) The PTAC specifically alleges violations under § 1681s-2(b) and claims that defendants "Ocwen and Homeq, and defendants Transunion, Equifax and Experian, violated and continues to violate the [FCRA] . . . by publishing erroneous, inaccurate, and false information regarding plaintiffs' MBNA/BOA accounts and mortgage loan." Id. ¶ 126. Plaintiffs further allege that these Defendants falsely reported that "plaintiffs have not made a payment on their loan/mortgage since December 2007." Id.

The only FCRA provision "that can be enforced by a private citizen seeking to recover damages caused by a furnisher of information" is § 1681s-2(b). SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 358 (3d Cir. 2011). To state a claim against a furnisher of information under § 1681s-2(b)(1), consumers must plead that they: "(1) sent notice of disputed information to a consumer reporting agency, (2) the consumer reporting agency then notified the defendant furnisher of the dispute, and (3) the furnisher failed to investigate and modify the inaccurate information." Tutanji v. Bank of Am., 2012 WL 1964507 at *4.

The FCRA contains a statute of limitations for bringing claims which states:

An action to enforce any liability created under this subchapter may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction, not later than the earlier of --
(1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or
(2) 5 years after the date on which the violation that is the basis for such liability occurs.

15 U.S.C. § 1681p.

(a) Homeq, Ocwen, Ameriquest, and AMC

Plaintiffs' proposed complaint alleges that "on or about November 2008 and thereafter, plaintiffs dispute with the credit reporting agencies Homeq's false credit reporting regarding reporting of no loan payment made by plaintiffs since December 2007, and additional false credit reporting." PTAC ¶ 80. The proposed complaint also claims that "[i]n or about February 2011 and thereafter, plaintiffs also disputed with the credit reporting agencies Ocwen's false credit reporting as to falsely reporting 'double' mortgages, a false mortgage open date of August 2004, and also no mortgage payments by plaintiffs since January 2011." Id. ¶ 81. The proposed complaint contends that the credit reporting agencies "verified the information and reported as accurate." Id. Plaintiffs also "disputed reporting by Ameriquest/AMC Mortgage Services, which reflected plaintiffs' original 2004 Argent mortgage loan number, but was now being reported as 'past due,' loan number 'closed,' and 'transferred to another lender or claim purchased.'" Id. ¶ 82. Plaintiffs claim that the credit reporting agencies deleted this entry, "but plaintiffs were left without any mortgage credit reporting for the months of October 2004 to December 2004." Id. Plaintiffs allege that as of now, "plaintiffs have no mortgage payment history reported to any credit-reporting agency for the period of October 2004 to November 2010, just after Ocwen acquired Homeq" and their "February 2004 Fremont loan is only reported to one credit-reporting agency." Id. ¶ 81.

Defendant Argent argues that Plaintiffs' motion to add FCRA claims against Ameriquest and AMC Mortgage Services should be denied as futile because the claims are time-barred. Argent Opp. (ECF No. 350) at 8. Specifically, Argent contends that "[p]laintiffs did not attempt to assert claims against Ameriquest or AMC Mortgage Services for alleged violations of the FCRA until February, 2009, more than four years after they started scrutinizing their credit reports." Id. at 9. Argent also asserts that "[p]laintiffs certainly could have discovered the alleged discrepancies by January, 2007 - two years after they began scouring their credit reports." Id.

Defendant Homeq argues that "[w]hile Plaintiffs specifically seek relief under 15 U.S.C. § 1681s-2(b)(1), they fail to allege that they contacted a consumer reporting agency about any allegedly erroneous information provided by HomEq or that HomEq received notice pursuant to § 1681i(a)(2) from any consumer reporting agency." Homeq Opp. (ECF No. 352) at 7-8. Thus, according to Homeq, "Homeq was never even subject to the requirements set forth in . . . § 1681s-2(b)(1)." Id. at 8. Homeq also disputes that Plaintiffs' factual allegations sufficiently state a claim under the FCRA. Id. at 8-9 ("Moreover, Plaintiffs have not shown any facts that support Plaintiffs' conclusion that HomeEq eliminated critical positive information or failed to report positive credit information."). Plaintiffs agree that "[s]ervicers are not liable for credit reporting under the FCRA." Pl. Reply (ECF No. 357) at 11. Both Homeq and Ocwen are alleged to be servicers of Plaintiffs' mortgage.

The Court's review of the sufficiency of the allegations is complicated by the deficiencies already enumerated. Nevertheless, the Court finds that Plaintiffs have failed to allege sufficient facts to make out a cause of action against Homeq, Ocwen, Ameriquest, and AMC. First, these entities could not be furnishers of information as regards to Plaintiffs' MBNA credit card information as Plaintiff has not alleged that they had any knowledge of that dispute sufficient for any of these entities to undertake an investigation.

Second, Plaintiffs' allegations regarding the supposed false reporting by Homeq and Ocwen of their current mortgage are deficient. The Court notes that once again much of the documentary evidence that Plaintiffs submit in reliance on their motion to amend belies their argument. For example, the credit reports to which Plaintiffs cite (Exh. 11 to Pl. Motion, ECF No. 349-11) show that their Homeq and Ocwen serviced mortgage is "Open/Never Late" and "Pays as Agreed." But without reaching the merits of Plaintiffs' claims, Plaintiffs have not alleged that these entities failed to undertake a reasonable investigation. "It is only when the furnisher fails to undertake a reasonable investigation following such notice that it may become liable to a private litigant under § 1681s-2(b)." SimmsParris, 652 F.3d at 359. Finally, as set forth below, the Court finds that there are serious concerns regarding whether Plaintiffs' claims are within the statute of limitations. Therefore, allowing Plaintiffs leave to amend the complaint to include these defendants would be futile.

(b) TransUnion, Equifax, Experian

Plaintiffs' PTAC has not set forth sufficient factual allegations to support a claim under the FCRA against credit reporting agencies TransUnion, Equifax, and Experian. The FCRA contains several provisions applicable to credit reporting agencies. However, Plaintiffs' proposed complaint does not specify which of the several sections of this comprehensive statute their claims fall under. Moreover, the proposed complaint includes very few facts, even if accepted as true, to support any claims whatsoever against the credit reporting agencies. Without more concrete allegations, the Court finds that the proposed complaint fails to state a claim under the FCRA against TransUnion, Equifax, and Experian. Therefore, allowing Plaintiffs leave to amend the complaint to include the credit reporting agencies to Count Seven would be futile.

iii . Mortgage related causes of action

A number of Plaintiffs' causes of action are directed towards alleged issues with their mortgage in 2001 when Wells Fargo, as mortgage servicer, reported "no data" and the October 2004 refinancing with Argent. Plaintiffs used some of the proceeds from the October 2004 refinancing to settle the discharged MBNA debt. Nevertheless, the prolix, tentacled allegations of Plaintiffs' proposed complaint ensnare seemingly every entity that has been involved, in any capacity, with their mortgage since Plaintiffs refinanced with Argent in 2004 and some from before that refinancing. Besides being so voluminous and poorly drafted, many of these allegations are conclusory. It is not enough to allege that a company was involved in some way-tangential or substantial-with a problematic mortgage. Each entity must have itself done something wrong or failed to perform some action that was required of it. Plaintiffs' allegations are replete with things that Plaintiffs allege are wrong or inconsistent with their mortgage transactions, but they fail to provide any specific allegations as to what involvement the proposed new defendants had with them, much less facts sufficient to articulate a colorable cause of action.

Specifically, Plaintiffs propose to add Wells Fargo, PPSI, Freddie Mac, Commercial Bank, Ameriquest, AMC, ACC, Fremont, Fidelity to Plaintiffs counts for "Mortgage Fraud/Fraud/Fraudulent Inducement and Fraudulent Conveyance" (Count Eight); violation of the Real Estate Settlement Procedure Act (Count Nine); violation of the Truth in Lending Act (Count Ten); and breach of contract (Count Eleven).

Plaintiffs' briefing adds little. Much of Plaintiffs' briefing is a rehash of their voluminous factual allegations. The few pages devoted to legal analysis argue that new defendants should be added in order to allow Plaintiffs to seek additional discovery. For example, Plaintiffs say that had the already named parties produced certain documents, then Plaintiffs would not need to add the Credit Reporting Agencies:

BOA and Barclays/Ocwen failed to produce Universal Data Forms (UDF). The UDFs are routine discovery and establish what, and who, reported to Credit Reporting Agencies (CRA), Subscriber codes are utilized by the credit reporting agencies. The Subscriber codes differ on plaintiffs' credit reports. Naming the [TransUnion, Experion, and Equifax] in the within action may not have been necessary had BOA and Barclays/Ocwen provided the routine UDFs.

Pl. Br. (ECF No. 349-34) at 23. Similarly, Plaintiffs say that if Citigroup had produced a particular agreement, then they would not need to have named ACC Capital Holdings, Ameriquest, and AMC Mortgage Services. Id. at 24. It is improper to add a party as a defendant in a matter merely in order to obtain discovery from that party. Rather, the federal rules contemplate third party discovery through the use of properly issued subpoenas in order to obtain relevant testimony or documents. See Fed. R. Civ. P. 45.

(1) Violations of the Mortgage Fraud (Count Eight)

The Court is unclear exactly what cause of action Count Eight is as it seemingly includes four separate claims in one. In any event, Plaintiffs fail to state a claim under any or all of the titled actions. These fraud-based claims must be pled with particularity per Federal Rule of Civil Procedure 9(b). To meet this heightened pleading standard, a plaintiff "must state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the precise misconduct with which it is charged." Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (internal citations and quotations omitted). Specifically, "the plaintiff must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation." Id. at 200. Clarifying this standard, the Third Circuit has advised that, at a minimum, a plaintiff must provide the sort of factual background that would accompany "'the first paragraph of any newspaper story'—that is, the 'who, what, when, where and how' of the events at issue." In re Supreme Specialties, Inc. Sec. Litig., 438 F.3d 256, 276-77 (3d Cir. 2006) (citations omitted). A complaint must do more than assert generalized facts, it must allege facts specific to the parties. Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 658-59 (3d Cir. 1998) (where the complaint failed to allege "what actually happened to either" of the plaintiffs, the complaint did not plead "fraud with the specificity required by Rule 9(b)").

While Plaintiffs have specified the particular defendants for each count, they still do not parse out in the proposed complaint what each entity allegedly did in order to give rise to these causes of action. Instead, the proposed complaint lump numerous Defendants together in the same allegations without distinguishing which particular defendant committed what specific alleged acts. See, e.g., PTAC ¶¶ 123-25, 137-38. Pleading in this manner requires the Court and defendants to guess the nature of the wrongdoing and fails to "give the defendant[s] fair notice of what the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007); see also Venezia v. Union Cnty. Prosecutor's Office, No. 10-6692 2011 WL 2148818 at *1 (D.N.J. May 31, 2011).

For example, paragraph 130 of the PTAC alleges that:

Defendants [sic] fraudulent and false actions have kept plaintiffs in a false and fraudulent default debt with false and fraudulent mortgage title, and defendants actions fraudulently combined to accomplish the unlawful purpose by unlawful means the fraudulent taking of plaintiffs' mortgage monies and the continued fraudulent conspiracy to fraudulently report plaintiffs' mortgage and MBNA/BOA accounts as unpaid, defendants fraudulently obtained and fraudulently converted plaintiffs' mortgage into a default debt, and with invalid, missing, and fraudulent assignments, thus, invalidating mortgage title to plaintiffs' home, in order to keep plaintiffs in a fraudulent default debt in which all defendants have/had a financial interest.


Plaintiffs argue that their proposed fraud claim(s) satisfies Rule 9(b): "Plaintiffs fact [sic] sufficiently provided the particularity and details, including who, when and how, requisite for fraud allegations." Pl. Reply (ECF No. 351) at 14. This is another conclusory statement. Plaintiffs do not go on to elaborate or explain these details or point the Court to where such details are alleged or provided in either their proposed complaint or their briefing.

The Court finds that Plaintiffs' fraud count falls short of the heightened standards of Rule 9(b) as the allegations fail to explain precisely what each Defendant did that was fraudulent and how Plaintiffs were harmed by it. Plaintiffs repeat throughout that their debt was placed in "false default." See PTAC ¶¶ 128-37. Aside from the fact that this seems to be incorrect based on Plaintiffs' own evidence as discussed earlier, Plaintiffs never say exactly who placed their loan in a "false default." They allege that Wells Fargo reported "No Data" and that they inquired what this means, but do not elaborate further. Plaintiffs also complain that "each loan following the 2002 Freddie Mac false default loan...remains outstanding and unpaid." Id. at ¶ 132. Again, this assertion contradicts Plaintiffs' own allegations that they refinanced and closed each mortgage subsequent to their 2000 Columbia Bank mortgage (which is apparently also the "Freddie Mac false default loan") other than their current loan, which they do not allege is outstanding or unpaid. Plaintiffs fail to provide any factual support for their allegations that "Defendants [sic] actions were fraudulent and with malice, purposeful and intentional, and without reasonable [sic] by law." PTAC ¶ 136. Nor do Plaintiffs allege what damage they suffered by their 2000 refinance loan allegedly being placed in a "false default"-according to their own allegations there appear to be none as they were able to refinance that loan and close it as paid in full. PTAC ¶¶ 25-29, 43, 48. For these reasons, allowing Plaintiffs leave to amend the complaint to include the additional defendants as to Count Eight would be futile.

(1) Violations of RESPA (Count Nine)

Plaintiffs also seek to add Wells Fargo, PPSI, Freddie Mac, Commercial Bank, Ameriquest, AMC, ACC, Fremont, Fidelity to their Real Estate Settlement Procedure Act claim ("RESPA"). However, none of the factual allegations sustains a RESPA claim against any of these parties.

Plaintiffs allege that these defendants violated 12 U.S.C. § 2605 and § 2607. PTAC ¶¶ 139, 140, 145. Section 2605(a) requires lenders of "federally related mortgage loans" to disclose to each applicant whether the servicing contract of the loan may be assigned, sold, or transferred while the loan is outstanding. 12 U.S.C. § 2605(a). Such notification must be given at the time of application. Id. Section 2605(b) sets forth requirements for notification of a borrower that its servicing contract will be or has been assigned, sold, or transferred. It applies only to "federally related mortgage loans." It requires that the servicer notify the borrower in writing fifteen or more days before the effective date of the transfer, sale, or assignment. 12 U.S.C. § 2605(b)(2)(A). Two exceptions apply. First, if the transfer, sale, or assignment occurs after the termination of the servicing contract for cause, or if the servicer files for bankruptcy or enters receivership in a manner described by the statute, then notice must be given not more than thirty (30) days after the effective date of transfer, sale, or assignment. § 2605(b)(2)(B). Moreover, if the lender gives the borrower sufficient written notice as described in section 2605(a)(3), then the servicer need not provide notice of a sale, transfer, or assignment of the servicing contract at all. § 2605(b)(2)(C). Identical notification requirements apply to any transferee of a servicing contract. § 2605(c). A loan servicer must respond to qualified borrow requests within a timeline described in the statute. § 2605(e).

Statutory damages for noncompliance with this statute include actual damages resulting from noncompliance and additional damages subject to the court's discretion. 12 U.S.C. § 2605(f). Reasonable costs and attorney fees are also collectible. Id. A defendant is not liable under this section if its failure to comply is corrected within sixty (60) days of discovery of its error and before commencement of an action and receipt of notice of error from the borrower, as long as it makes necessary correction to prevent the borrower from paying more than what it owes. § 2605(f).

Section 2607(a) of RESPA prohibits payment of fees or transfer of valuable consideration for business referrals in real estate settlement service involving federally related mortgage loans. 12 U.S.C. § 2607(a). No splitting of charges is permitted except for services actually performed. § 2607(b).

The proposed complaint alleges that the mortgage loan in question is a federally related mortgage loan and is guaranteed, or should have been, by Fannie Mae or Freddie Mac. PTAC ¶ 139. Plaintiffs repeat that the loan is a Freddie Mac Investor Loan and that Freddie Mac invested in Plaintiffs. The Court does not understand what Plaintiffs mean by this assertion. It may be Plaintiffs' attempt to allege that the loan is "federally related mortgage loan" in order to come within the ambit of the RESPA statutes. According to the proposed complaint, Defendant Argent transferred the mortgage loan in question to Defendant Ameriquest on October 4, 2004, and Defendant Ameriquest subsequently transferred the loan to a "blank entity" on that same date. PTAC ¶ 140. At a closing on October 8, 2004, the lender was identified as Argent. Id.

Plaintiffs take issue with this "false" identification of the lender and claim it violates § 2605. This section, however, requires disclosure of transferee servicers , not lenders. 12 U.S.C. § 2605(c), (d). Moreover, Plaintiffs allege that the October 8, 2004 closing was to refinance the loan with Defendant Argent (in order to obtain the funds to pay Defendant MBNA $29,000). Therefore, there is nothing inconsistent between these allegations and Argent being identified as the lender. And there is no allegation that Plaintiffs were not informed of any subsequent transfers in service. Finally, this paragraph fails to plainly state which defendant allegedly violated § 2605. One might infer from the allegations that Plaintiffs intend to implicate Argent, but Argent is not one of the defendants that Plaintiffs seek to add.

Plaintiffs next allege that the transaction that closed on October 8, 2004 was a "table funded" loan and the entity that provided the table funding—here, the unknown assignee referenced in paragraph 140—must be identified to the borrower prior to closing. PTAC ¶ 141. Plaintiff cites section 2605 as the statute that requires this disclosure. Again, however, section 2605 sets forth disclosure requirements for transfers, sales, or assignments of servicing contracts , not a change in lenders or mortgagees. 12 U.S.C.§ 2605(a)-(c). Plaintiffs do not allege that this was an assignment of the servicing rights. Plaintiffs also state that the alleged violation of RESPA was "fraudulently concealed" from them. But, again, there are no specific allegations of fraud as to any of the proposed new defendants.

The regulations define table funding as "a settlement at which a loan is funded by a contemporaneous advance of loan funds and an assignment of the loan to the person advancing the funds." 24 C.F.R. § 3500.2(b). It is not a secondary market transaction.

Plaintiffs next accuse a multitude of defendants of violating section 2605 in a lengthy paragraph that makes no explicit reference to servicing loans, loan servicers as such, or the sale, transfer, or assignment of loan servicing contracts. PTAC ¶ 143. Similarly, Plaintiffs reference an April 2002 discharge of the February 2002 mortgage, of which Plaintiffs allege that defendant BOA was the mortgagee and in which Defendant Freddie Mac was allegedly an investor. PTAC ¶ 144. Plaintiffs allege that the mortgage is invalid because the mortgagee listed on the mortgage is "false," but makes no reference to how (or whether) the cited RESPA provisions were violated by this alleged incorrect information. Id. Plaintiffs allege that the discharge of a mortgage that occurred in October 2004 is invalid under New Jersey state law, and that the recorded discharges must be "expunged and replaced with valid documents." Id. Plaintiffs implicate Defendant Fremont by referencing it here, but they make no reference to a violation of the RESPA provisions at issue in Count Nine and allege no specific conduct by Fremont. Id. Indeed, much of these allegations are legal conclusions, which the Court should not consider in assessing the sufficiency of Plaintiffs' claim.

Finally, Plaintiffs launch an accusation against "all defendants" for paying fees and kickbacks with respect to the Plaintiffs' October 2004 mortgage. PTAC ¶ 145. This conclusory language merely tracks the language of the statute and does not plead any facts in support of this claim. Plaintiffs claim that "unacounted [sic] fees were falsely presented as MBNA/BOA debt paid" and make reference to a "fraudulent HUD statement." Id. Yet nowhere do Plaintiffs indicate that the alleged diversion or misuse (or, even, theft) of funds was a kickback for referrals or what parties were involved. Furthermore, neither fraud, theft, nor any breach of duty is alleged in this section as required by the statute. See 12 U.S.C. § 2607(a).

For these reasons, the Court finds that allowing Plaintiffs leave to amend the complaint to include the proposed new defendants as to Count Nine would be futile.

(3) Violations of the TILA (Count Ten)

Plaintiffs also allege that the proposed new defendants violated the Truth in Lending Act ("TILA"). The crux of Plaintiffs' TILA claim appears to be that Argent allegedly made "false statements" when it disclosed the payment schedule at the 2004 refinancing violating 15 U.S.C. § 1638(a)(2)-(6), (14) and that Argent allegedly failed to properly direct proceeds from the 2004 refinancing to pay the MBNA debt or that MBNA did not properly record the payment. These allegations concern parties, Argent and Bank of America, that were already included in Plaintiffs' second amended complaint.

In addition, Plaintiffs allege that "Defendants," generally, violated TILA by failing to identify the creditor violating 15 U.S.C. § 1638(a)(1) and by failing to provide a notice of right to cancel violating 12 C.F.R. 226.23. As discussed above and as the Court previously explained, a blanket allegation against multiple defendants that is bereft of specific wrongdoing by those proposed defendants is insufficient to state a claim.

The following is the only allegation to specifically address the new parties by name:

Defendants MBNA/BOA, BOA and BANA, Citigroup, Inc., Barclays d/b/a Homeq, Argent, Wells Fargo, Park Place Securities, Inc., PPSI 2004 WHQ2, Ameriquest, AMC Mortgage Services, ACC Capital Holdings Corporation, Fremont, Ocwen, Freddie Mac, and Columbia Bank, all have a financial interest in plaintiffs' loan, and failed to identify lender/creditor who funded plaintiffs' October 2004 mortgage (and prior Columbia and Fremont refinances), failed to disclose that plaintiffs were falsely placed in default in year 2002 with their

Freddie Mac investor loan (BOA mortgagee), failed to disclose that the October 2004 loan was not a mortgage but rather a modification of false default debt, and failed to disclose and provide information as to past and present ownership of plaintiffs' mortgage.

PTAC ¶ 159. Plaintiffs go on to repeat their allegations as to the MBNA debt and the Argent refinancing, then allege:
Ocwen reports dual loans on plaintiffs' credit reports, including an originated August 2004 loan that is unknown to plaintiffs. Ocwen informed plaintiffs that they are collecting for Freddie Mac, REMIC 2859. Ocwen is reporting dual loans on plaintiffs' credit reports, and in December 2011 removed PPSI by assignment. Commonwealth deemed the April 2009 assignment invalid through invalid power of attorney. Each defendant has a financial interest in plaintiffs' false default loan.


Id.

From what the Court can discern, Plaintiffs allege that each of these defendants violated the Truth in Lending Act because they have or had some financial interest in one of Plaintiffs' mortgages and failed to disclose certain information, including the lender who funded the October 2004 mortgage (the Argent mortgage), the February 2004 mortgage (the Fremont mortgage), and the 2002 mortgage (the Columbia mortgage). The only statute that Plaintiffs cite to regarding all defendants is 15 U.S.C. § 1638(a)(1), which creates a duty upon a creditor to disclose "the identity of the creditor required to make disclosure." It is unclear, however, what duty any of the new defendants had to disclose the lender who funded any of these loans. Section 1638(a)(1) must be read in light of 15 U.S.C. § 1602(f), which provides in relevant part:

This cause of action is also curious because Plaintiffs allege the identity of the creditor who funded each of these mortgages. Therefore, it appears that Plaintiffs knew the creditor required to make the disclosure. Moreover, Bank of America discusses in detail, and attaches supporting documentation that is not in dispute, that each of Plaintiffs' prior mortgages are closed and reported as paid in full and that Plaintiffs' current mortgage is not in default. BOA Opp. (ECF No. 355) at 17-23. Thus, Bank of America argues that any causes of action as to these mortgages are moot and that Plaintiffs' allegations are baseless. The Court need not reach the merits of this argument.

The term "creditor" refers only to a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness, by agreement....

15 U.S.C. § 1602(f) (emphasis added). Because Plaintiffs have not alleged that any of these mortgages were initially payable to any of the new defendants-with the exception of Fremont-Plaintiffs' claim must fail. See In re Patchell, 336 B.R. 1, 8-9 (Bankr. D. Mass. 2005) (stating to be liable under TILA "a mortgagee must fall under both prongs of section 1602(f)" and dismissing plaintiff's claim against Wells Fargo because the "Plaintiff has not pled that either of the loans were initially payable to Wells Fargo"). As to the cause of action against Fremont, there is no allegation that Fremont failed to properly identify itself in the February 2004 refinancing.

Plaintiffs do not point to any other relevant statute that would suggest any liability on the part of any new defendant. Plaintiffs also allege that each of the new defendants has a financial interest in their loans. Again, this is conclusory and not particularly probative. According to Plaintiffs' allegations, many of the entities no longer have any interest whatsoever in any of Plaintiffs' loans or finances as the prior loans have been refinanced and paid in full. Plaintiffs must show that each entity owned an obligation and violated the Truth In Lending Act in connection with that obligation. Moreover, servicers of a loan are not liable under TILA because it does not own the obligation. Longo v. First Nat'l Mortg. Sources, No. 07-4372, 2009 U.S. Dist. LEXIS 8878, at *14-15 (D.N.J. Feb. 5, 2009).

Plaintiffs cite a number of statutes and regulations in their chart submitted in connection with their motion. The Court ordered this chart in order to help elucidate the bases for Plaintiffs' causes of action in considering the motion. The chart cannot, of course, act as a supplement to the proposed complaint itself. Therefore, the Court finds that these statutes and regulations cannot support Plaintiffs' causes of action if they are not alleged in the proposed complaint itself. And, in any event, the Court has reviewed the statutes and regulations and finds that none of them supports a cause of action based on Plaintiffs' allegations.

Argent makes a number of arguments that parent and subsidiaries should not be named or found liable under TILA-or any of the causes of action-by merely being related to the creditor. Argent Opp. (ECF No. 350) at 20-22. While the argument seems well founded, and implicates many of the parties involved in this matter who appear to be named only because there is some relationship to a creditor or servicer of one of Plaintiffs' loans, the Court need not reach it as it is deciding these matters on a number of other grounds.

Nevertheless, Plaintiffs seek rescission of their current (and past) mortgages based on the supposed violations of the Truth in Lending Act and cite to 12 C.F.R. § 226 for support. But rescission is not a remedy that is available to Plaintiffs. "Under Regulation Z, 12 C.F.R. § 226.1 et seq., the right to rescind does not apply to a residential mortgage transaction." Scott v. Wells Fargo Home Mortg., Inc., 326 F. Supp. 2d 709, 716 (E.D. Va. 2003); 15 U.S.C. § 1635(e)(1) ("This section does not apply to. . . a residential mortgage transaction as defined in section 1602(w) of this title"); 12 C.F.R. § 226.23 (f) (exempting residential mortgage transactions from rescission rights); Gray v. Wells Fargo Home Mortg., No. 11-2945, 2012 U.S. Dist. LEXIS 8571, at *4-5 (D.N.J. Jan. 24, 2012) ("This Court and other courts in this Circuit have regularly applied this TILA exemption to loans made for the purchase of residences."); Pantalion v. Resmae Mortg. Corp., No. 09-2269, 2010 U.S. Dist. LEXIS 47209, *13-14 (E.D. Cal. May 12, 2010) ("[R]escission is not available under TILA because the transaction for which plaintiff seeks rescission was a residential mortgage transaction."). Plaintiffs also appear to seek actual damages. PTAC, Count Ten Prayer for Relief (seeking compensatory and monetary damages). As the Third Circuit has explained, a plaintiff cannot recover actual damages under TILA unless it shows detrimental reliance. Drennan v. PNC Bank, NA, 622 F.3d 275, 278 (3d Cir. 2010) (detrimental reliance is an element of a claim for actual damages under TILA); Vallies v. Sky Bank, 591 F.3d 152, 158 (3d Cir. 2009) ("Without detrimental reliance, only statutory damages are available [under TILA]."). There is no allegation, other than conclusory statements, stating or suggesting that Plaintiffs relied to their detriment on the alleged TILA violations.

The right to rescind under TILA is subject to a three-year statute of repose. 15 U.S.C.S. § 1635(f). Unlike a statute of limitations, a statute of repose is not subject to enlargement by equitable tolling. Williams v. Wells Fargo Home Mortg., Inc., 410 Fed. Appx. 495, 499 (3d Cir. 2011) ("15 U.S.C.S. § 1635(f) is not a statute of limitations, but a statute of repose, i.e., one governing the life of the underlying right. Because the right ceases to exist once a statute of repose has run, equitable tolling cannot resurrect the right to rescind a credit transaction."). Therefore, even if Plaintiffs had a right to rescind it would have expired in October 2007-three years after the loan closed. See id.

For these reasons, the Court finds that allowing Plaintiffs leave to amend the complaint to include the additional defendants as to Count Ten would be futile.

(4) Breach of Contract (Count Eleven)

Plaintiffs propose adding the same new defendants-Wells Fargo, PPSI, Freddie Mac, Commercial Bank, Ameriquest, AMC, ACC, Fremont, Fidelity-to their breach of contract claim (Count Eleven). These allegations mostly parrot the same allegations in Plaintiffs' RESPA and TILA claims and fail for the same reasons.

To state a claim for breach of contract claim under New Jersey law, Plaintiffs must allege: (1) the existence of a valid contract between itself and a defendant; (2) that a defendant materially breached the contract; and (3) the plaintiff suffered damages as a result of the breach. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 421 F.Supp.2d 831, 833 (D.N.J. 2006) (citing Coyle v. Englander's, 199 N.J.Super. 212, 223, 488 A.2d 1083 (App. Div. 1985)).

Plaintiffs attempt to allege the existence of valid contracts as follows:

Plaintiffs had credit card agreements/contracts with defendant MBNA/BOA, and Bank of America Corporation, formerly MBNA Corporation, and a mortgage contract with BOA and BANA, and a mortgage contract with defendants Argent Mortgage Company, now defendant Citigroup Inc, as successor in interest to Argent Mortgage Corporation, and defendant Barclays Bank, d/b/a Homeq Servicing Corporation, and Homeq Servicing, as servicer to the contract, and Ocwen, successor to Homeq Servicing, who claims monthly mortgage payments are owed to Park Place Securities, Inc. and Wells Fargo Bank, N.A. as trustee for Park Place Securities, Inc. (Park Place Securities, Inc. has been removed from assignment in December 2010), and with AMC Mortgage Services and Ameriquest Mortgage Company, and its parent corporation ACC Capital Holdings Corporation, and with Fremont Mortgage, and Columbia Bank, and with Fidelity National Financial, Inc., d/b/a as Commonwealth Land Ttitle, and d/b/a Lender Processing Services, as subservicer, and with Freddie Mac, as investor, which constituted a contract between plaintiff and those defendants

PTAC ¶ 164 (all errors in original). From what the Court can glean, Plaintiffs do allege that there is a direct contract with Homeq Servicing "as servicer to the contract." But there is no allegation of an actual contract between Ocwen, Wells Fargo, or Park Place Securities. Rather, Plaintiffs allege that Ocwen, who is not alleged to be in direct privity with Plaintiffs but is the successor to Homeq, claims that money is owed to Wells Fargo and Park Place Securities. This is insufficient to find the existence of a valid contract between Plaintiffs and Wells Fargo and Park Place Securities. Further, it is unclear from Plaintiffs' complaint whether they allege that there is a contract with the remaining entities. In any event, much of this portion of the pleading is again legal conclusion. Plaintiffs have not shown in their allegations that they entered into a contractual arrangement with Park Place Securities, Wells Fargo, ACC Capital Holdings, Fidelity, or Freddie Mac.

If the Court construes Plaintiffs' allegations liberally then considering that Plaintiffs allege direct relationships with Homeq, Ocwen, Ameriquest, Fremont, and Columbia, it is possible there were contracts between Plaintiffs and these entities. Nevertheless, Plaintiffs do not allege any specific conduct as to any of these defendants that would constitute a material breach of a contract term or identify damages flowing from that breach. Again, Plaintiffs employ general statements as to all defendants:

Defendants breached the mortgage contracts by falsely and fraudulently placing plaintiffs in false default, and falsely and fraudulently collecting mortgage payments.

PTAC ¶ 166.
All defendants including breached mortgage contracts with plaintiffs by failing to provide valid mortgage/mortgage loan sale/assignments of plaintiffs' mortgage, fraudulently and falsely collecting mortgage payments, fraudulently and falsely failing to payoff prior mortgage loans, and by fraudulently and falsely obtaining and fraudulently and falsely converting plaintiffs' mortgage into a fraudulent default debt.

PTAC ¶ 167. As explained above, such blanket statements are insufficient to state a claim against individual parties. Because Plaintiffs do not allege any specific terms of any specific contract or explain how these conclusory allegations supposedly constitute a breach of any contract, let alone a material breach, by any proposed new defendant the Court finds that adding the proposed new defendants to Count Eleven would be futile.

(5) Statute of Limitations

Finally, defendants Bank of America, Homeq, and Ameriquest each argue that the statute of limitations prevents Plaintiffs from asserting these mortgage-related causes of action against the new defendants.

The statute of limitations for a Fair Credit Reporting Act claim is defined by 15 U.S.C. § 1681p as the earlier of "two years after the discovery by plaintiff of the violation" or "five years after the date of which that violation occurs." 15 U.S.C. § 1681p. The statute of limitations for a RESPA claim is "three years in the case of a violation of section 2605...and one year in the case of a violation of section 2607." 12 U.S.C. § 2614. Plaintiffs' RESPA claim putatively rests on both sections 2605 and 2607. The statute of limitations for a TILA claim is "one year from the date of occurrence of the violation." 15 U.S.C. § 1640(e). That period begins to run when the loan closes. In re Cmty. Bank of N. Va., 467 F.Supp.2d 466, 475 (W.D.Pa. 2006).

Plaintiffs first sought to add these new parties in February 2009 and their FCRA, RESPA, and TILA claims, at least as to the new defendants, are based on alleged discrepancies related to their October 2004 Argent mortgage, the adequacy of disclosures connected with that refinancing (or earlier refinancings), and the dispersal of funds from that refinancing to MBNA. Defendants argue that Plaintiffs reasonably should have discovered any discrepancies or inadequacies at the same time they filed the initial action either in this matter or when they filed their related matter in 07-4869. Plaintiffs do allege that they reviewed their credit reports in January 2005. PTAC ¶ 58.

Argent also argues that it and Ameriquest owned the mortgage only for a very short period of time in 2004 so that is the only period in which it could have reported anything on the loan or made any disclosures. Argent. Opp. (ECF No. 350) at 14.

Plaintiffs respond by arguing that the statute of limitations should be equitably tolled in each instance, but do little beyond laying out the factors for equitable tolling and stating, conclusively and without analysis, that those factors apply. See Pl. Reply to Argent [ECF No. 351] at 12; Pl. Reply to Homeq [ECF No. 353] at 13-14; Pl. Reply to BOA [ECF No. 357] at 14. Such a threadbare recitation of the case law is unpersuasive and insufficient.

Whether Counts Seven, Nine, or Ten could be asserted at this late date is questionable. But considering the multiple deficiencies already addressed and found by the Court, it need not reach the issue of whether applicable statutes of limitations render Plaintiffs' proposed amendments futile.

(6) Quiet Title Action (Count Twelve)

The proposed complaint seeks to add a new quiet title claim, pursuant to N.J. Stat. Ann. 2A:62-1, against MBNA/BOA, Citigroup, Inc., Homeq, Argent, Wells Fargo, Park Place Securities, Inc., PPSI 2004 WHQ2, Ameriquest, AMC, ACC, Fremont, Fidelity, Ocwen, Freddie Mac, and Columbia Bank. Plaintiffs allege that "[t]he March/April 2009 and December 2010 assignments recorded by defendants Homeq and Ocwen are invalid and do not constitute a valid mortgage chain of title, and must be expunged." PTAC ¶ 175. In addition, Plaintiffs claim that "[t]he April 2002 discharge of the February 2002 Freddie Mac (investor) and MBNA/BOA (mortgagee) mortgage is invalid, and the October 2004 mortgage discharge of February 2004 Fremont mortgage is invalid pursuant to New Jersey mortgage discharge requirements, and the discharges must be expunged." Id. at ¶ 177. Plaintiffs further allege that "[d]ue to defendants' violation of the New Jersey statute, plaintiffs do not have valid and legal mortgage title." PTAC ¶ 178.

BOA argues that "plaintiffs' quiet title claim has no logical basis" because "[n]o one has denied, disputed, or challenged Plaintiffs' title to their property." BOA Opp. (ECF No. 355) at 13-14. BOA expresses confusion regarding what it characterizes as Plaintiffs' "bizarre" allegations. Id. Defendant Homeq contends that Plaintiffs lack standing to challenge the validity of "the mortgage assignments from Argent to Ameriquest and Ameriquest to Wells Fargo Bank as Trustee, which were filed in 2009 by Homeq the then servicer of the Mortgage." Homeq Opp. (ECF No. 352) at 14. According to Homeq, "[s]ince Plaintiffs have no legally protected interest in the Mortgage assignments from Argent to Ameriquest and Ameriquest to Wells Fargo Bank, as Trustee they therefore lack standing to challenge them," and their quiet title count is futile. Id.

The doctrine of standing requires, at the outset of the litigation, a plaintiff to demonstrate that "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000) (citing Lujan, 504 U.S. at 560-61). As discussed above, Plaintiffs allege on one hand that their mortgage is current yet allege on the other hand that it is invalid. In particular, Plaintiffs complain about the assignments from Argent to Ameriquest and then Ameriquest to Wells Fargo and claim that irregularities in that process have somehow manifested into a situation where not only do Plaintiffs not own their property, but Bank of America does. PTAC ¶ 32 ("BOA may be more than simple 'mortgagee' and in fact actually own plaintiffs' property"). First, Homeq is likely correct. Case law from other jurisdictions holds that a mortgagor does not have standing to attack an assignment between two third parties. In Livonia Property Holdings, LLC v. 12840-12976 Farmington Road Holdings, LLC, 717 F. Supp. 2d 727, 735 (E.D. Mich. 2010), aff'd, 399 Fed. App'x. 97, 102 (6th Cir. 2010), cert. denied, 131 S.Ct. 1696 (2011), the court held on similar facts that a borrower, as a non-party to the assignment documents it was challenging, lacked standing to attack them. The Court noted:

The underlying contract is between Obligor and Assignor. Assignor's assignment contract is between Assignor and Assignee. The two contracts are completely separate from one another. As a result of the assignment contract, Obligor's rights and duties under the underlying contract remain the same: The only change is to whom those duties are owed ... Obligor was not a party to [the assignment], nor has a cognizable interest in it. Therefore, Obligor has no right to step into Assignor's shoes to raise its contract rights against Assignee. Obligor has no more right than a complete stranger to raise Assignor's rights under the assignment contract.

Id.
at 737; see, e.g., In re Walker, 466 B.R. 271, 285 (Bankr. E.D. Pa. 2012) ("[I]t appears that a judicial consensus has developed holding that a borrower lacks standing to (1) challenge the validity of a mortgage securitization or (2) request a judicial determination that a loan assignment is invalid due to noncompliance with a pooling and servicing agreement, when the borrower is neither a party to nor a third party beneficiary of the securitization agreement.").

More fundamentally Plaintiffs have failed to allege how any of the alleged irregularities in the assignments between third parties somehow cloud title in the mortgage itself. Pursuant to New Jersey's quiet title statute:

Any person in the peaceable possession of lands in this state and claiming ownership thereof, may, when his title thereto, or any part thereof, is denied or disputed, or any other person claims or is claimed to own the same, or any part thereof or interest therein, or to hold a lien or encumbrance thereon, and when no action is pending to enforce or test the validity of such title, claim or encumbrance, maintain an action in the superior court to settle the title to such lands and to clear up all doubts and disputes concerning the same.

N.J. Stat. Ann. 2A:62-1. The purpose of an action to quiet title "is to put within the power of a person, who is in peaceable possession of realty as an owner, a means to compel any otherperson, who asserts a hostile right or claim, or who is reputed to hold such a right or claim, to come forward and either disclaim or show his right or claim, and submit it to judicial determination." Brookdale Park Homes, Inc. v. Twp. of Bridgewater, 280 A.2d 227, 231 (N.J. Super. Ct. Ch. Div. 1971), see, e.g. Reitmeier v. Kalinoski, 631 F. Supp. 565, 571 (D.N.J. 1986) (in quiet title action, plaintiff proved peaceable possession "by the uncontroverted evidence that he resides at the property, has so resided for a considerable period and defendant has never sought to hinder plaintiff from so doing").

As Bank of America correctly states, no party appears to be contesting the validity of Plaintiffs' mortgage except Plaintiffs themselves. One of the elements of a quiet title claim is that there must be some doubt or dispute as to the status of the land. Here Plaintiffs do not allege that any other party has attacked the validity of Plaintiffs' mortgage. Plaintiffs claim that they do not know the owner of their mortgage and that the assignments of their mortgage are invalid. However, these bald allegations fail to establish that a quiet title action is warranted here. See, e.g., Bey v. Johnson, No. 12-7190 JAP, 2012 WL 5989365 (D.N.J. Nov. 29, 2012) (dismissing plaintiff's quiet title claim because the complaint was "unnecessarily verbose and incomprehensible" and failed to allege defendants' alleged relationship to the land and plaintiff's alleged "suffered at the hands of Defendants"); Boykin v. MERS/MERSCORP, No. 11-4856, 2012 WL 1964495 (D.N.J. May 31, 2012) (dismissing a quiet title claim when the plaintiff's complaint consisted "almost exclusively of legal conclusions absent factual allegations"). Accordingly, the Court finds that adding the proposed new claim of quiet title (Count Twelve) would be futile.

Plaintiffs' assertions that certain assignments are invalid constitute legal conclusions devoid of factual support in their proposed complaint. Instead, Plaintiffs in their moving papers and replies point to an email as proof of this statement. It is improper to rely on such exhibits in order to state a claim in their complaint. Moreover, the email that Plaintiffs cite to in order to show that assignments were invalid is unauthenticated by certification or affidavit and appears to be an email from a Nakita Young, a title officer at Commercial Services. The email states "[t]he assignment from Ameriquest to Wells Fargo N.A. does not fall under the scope of Limited Power of Attorney recorded in Deed Book 1398, page 16, and does not give HomeEq Servicing the authority to exexcute the discharge." Ex. 22 to Pl. Motion to Amend (ECF No. 349-22) at 1. The email does not state or explain that any assignments were or are invalid. --------

IV. CONCLUSION

For the foregoing reasons, Plaintiffs' motion for leave to amend the Second Amended Complaint is granted in part and denied in part. Plaintiffs' motion to withdraw claims for violations of the Fourteenth Amendment, RICO and Conspiracy is granted. Plaintiffs' motion for leave to amend the SAC to add any new claims or defendants is denied. An appropriate order will accompany this opinion.

Date: February 11, 2013

s/ Michael A . Hammer


Hon. Michael A. Hammer


United States Magistrate Judge

Bank of America's earlier opposition expressed its frustrations with Plaintiffs' definition of "MBNA/BOA." MBNA/BOA claims that it is "inaccurate and includes entities that do not exist." (MBNA/BOA Opp'n at 8, ECF No. 318.) Plaintiffs did not seek to correct or alter their pleading. Adding further confusion, neither Plaintiffs' PTAC nor their briefs clearly show whether the PTAC seeks to add any new MBNA/BOA entities, or solely add additional facts regarding the MBNA/BOA entities named in the SAC. For example, the Second Amended Complaint ("SAC") names "Bank of America Corporation and also d/b/a Banc of America Securities, LLC, and also d/b/a successor in interest to MBNA Corporation." SAC ¶ 5, ECF No. 84. The PTAC names as a defendant:

Defendant, BANK OF AMERICA CORPORATION [hereinafter BOA], and also d/b/a as Banc of America Securities, LLC, and also d/b/a as Bank of America, N.A. [hereinafter BANA] by mortgage business practice, and as successor(s) by merger to Arbor National Holdings (Arbor), in year 1995, including Arbor's acquisition of GE Capital Mortgage Services, in year 1991, and as successor by merger to MBNA CORPORATION, {hereinafter MBNA}in approximately year 2006, is a corporation or other business entity organized pursuant to the laws of the State of Delaware, with registered agent located at: CT Corporation System, 225 Hillsborough Street, RR., Suite 470, Raleigh, North Carolina 27603..

PTAC ¶ 5. As discussed more fully below, this paragraph provides only one example of how Plaintiffs' PTAC prevents the Court from fully understanding which new parties Plaintiffs seek to add and any new claims against them. The chart supplied is helpful in some respects, but does not alleviate the Court's confusion. For example, for Counts I and VII, under "New Defendants," Plaintiffs write "Ocwen not new by APA." The Court has no idea what this means. Another example is for Count III, Plaintiffs write "BANA as to mortgage." Again, this makes no sense.