Case 2:16-cv-03147-ES-JAD Document 13 Filed 08/28/17 Page 1 of 15 PageID: <pageID> Not for Publication UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MARCIA A. HARRIS, Plaintiff, Civil Action No. 16-3147 (ES) (JAD) v. OPINION WELLS FARGO BANK, N.A.; WORLD SAVINGS BANK, FSB; WACHOVIA MORTGAGE, FSB; UNKNOWN JOHN DOES; UNKNOWN JANE DOES, Defendants. SALAS, DISTRICT JUDGE I. INTRODUCTION Pro se Plaintiff Marcia A. Harris brings this action against Defendants Wells Fargo Bank, N.A., World Savings Bank, FSB (“World”), and Wachovia Mortgage FSB (“Wachovia Mortgage”) (collectively, “Wells Fargo”) 1 in connection with a residential mortgage loan transaction and foreclosure action. Pending before this Court is Wells Fargo’s Motion to Dismiss Plaintiff’s Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (D.E. No. 9, (“Def. Mov. Br.”)). The Court has considered the parties’ submissions and resolves Wells Fargo’s motion without oral argument under Federal Rule of Civil Procedure 78(b). Because the Entire Controversy Doctrine, res judicata, and collateral estoppel bar Plaintiff’s 1 World was the original mortgagee and note holder. (See Def. Mov. Br. at 2). According to Wells Fargo, World changed its name to Wachovia Mortgage as of December 31, 2007. (Id.) Wachovia Mortgage was then acquired and merged into Wells Fargo. (Id.) Case 2:16-cv-03147-ES-JAD Document 13 Filed 08/28/17 Page 2 of 15 PageID: <pageID> Amended Complaint, the Court GRANTS Wells Fargo’s motion and dismisses Plaintiff’s Amended Complaint with prejudice. II. FACTUAL & PROCEDURAL BACKGROUND On May 22, 2006, Plaintiff executed a note in favor of World in the amount of $543,000 (the “Note”) and granted a mortgage (the “Mortgage”) to World, secured by property located at 477 Elkwood Terrace, Englewood, New Jersey 07631 (the “Property”) (collectively the “Loan”). (D.E. No. 8, Am. Compl. ¶¶ 17-18; see also D.E. No. 9-2, (“Bender Cert.”), Ex. C at 83-88, 90- 104 (attaching copies of the Note and Mortgage)).2 Plaintiff defaulted on the Loan on or about August 15, 2009. (D.E. No. 1-1, Ex. 4 (“State Compl.”)) ¶ 1-j). Following Plaintiff’s default, Wells Fargo filed a complaint for foreclosure on or about September 24, 2010, in the Superior Court of New Jersey, Chancery Division, Bergen County, seeking to enforce the Note and Mortgage and foreclose upon the Property (“State Foreclosure Action”). (State Compl.; see also Bender Cert., Ex. A). On July 24, 2012, Wells Fargo filed a motion for summary judgment in the State Foreclosure Action, which the state court granted. (Bender Cert. at Exs. C-D). On July 10, 2015, Plaintiff filed a motion to default Wells Fargo for not allowing her to rescind her loan on May 9, 2015. (Id., Ex. E; D.E. 1-1, Ex. 6 (“Notice of Rescission”) at 43-44). On September 25, 2015, however, Plaintiff withdrew her motion. (Id., Ex. F). Wells Fargo applied for entry of final judgment in the State Foreclosure Action on March 28, 2016. (Id., Ex. G). The state court granted final judgment of foreclosure in favor of Wells Fargo on July 8, 2016. (Bender Cert. Ex. I (“State Final Judgment”)). 2 “[A] document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added. 2 Case 2:16-cv-03147-ES-JAD Document 13 Filed 08/28/17 Page 3 of 15 PageID: <pageID> On June 1, 2016, Plaintiff filed a Complaint in the District Court for the District of New Jersey against Wells Fargo relating to the purported securitization of the Loan. (See generally Compl.). On August 24, 2016, Plaintiff filed an Amended Complaint containing the same six counts from her original Complaint. (See generally Compl. & Am. Compl.). Count One seeks damages for alleged violations of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601-2617. (Am. Compl. ¶¶ 47-57). Count Two alleges violations of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1666j, and Regulation Z, 12 C.F.R. § 1026. (Id. ¶¶ 58- 75). Count Three alleges intentional and/or negligent infliction of emotional distress. (Id. ¶¶ 76- 83). Count Four seeks damages and equitable relief for alleged negligent misrepresentation. (Id. ¶¶ 84-95). Count Five seeks damages and equitable relief for Wells Fargo’s alleged negligence in handling her loan payments. (Id. ¶¶ 96-102). Count Six seeks damages for alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. (Id. ¶¶ 63, 103- 20). On September 9, 2016, Wells Fargo moved to dismiss Plaintiff’s Amended Complaint under Rules 12(b)(1) and 12(b)(6). (Def. Mov. Br. at 1, 4-6). Plaintiff opposed Wells Fargo’s motion on September 19, 2016. (D.E. No. 10, (“Pl. Opp. Br.”)). Wells Fargo filed a reply in further support of its motion on September 26, 2016. (D.E. No. 11 (“Def. Reply Br.”)). The motion is now ripe for resolution. III. LEGAL STANDARD Wells Fargo seeks to dismiss Plaintiff’s Amended Complaint for lack of subject-matter jurisdiction and for failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. Each requires a different standard of review. See Cohen v. Kurtzman, 45 F. Supp. 2d 423, 428 (D.N.J. 1999) (citing cases). 3 Case 2:16-cv-03147-ES-JAD Document 13 Filed 08/28/17 Page 4 of 15 PageID: <pageID> A. Rule 12(b)(1) – Lack of Subject Matter Jurisdiction Federal courts have limited jurisdiction and are permitted to adjudicate cases and controversies only as permitted under Article III of the Constitution. See U.S. Const. art. III, § 2; see also Phila. Fed’n of Teachers v. Ridge, 150 F.3d 319, 322-23 (3d Cir. 1998) (“The existence of a case and controversy is a prerequisite to all federal actions, including those for declaratory or injunctive relief.”). Unless affirmatively demonstrated, a federal court is presumed to lack subject matter jurisdiction. See Ridge, 150 F.3d at 323 (citing Renne v. Geary, 501 U.S. 312, 316 (1991)). The party seeking to invoke federal jurisdiction has the burden of persuasion to establish subject- matter jurisdiction. See Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)). Under Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” A motion to dismiss under Rule 12(b)(1) “attacks . the right of a plaintiff to be heard in Federal court.” Kurtzman, 45 F. Supp. 2d at 428. When ruling on such a motion, a distinction must be made between a facial and factual attack. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). If the Rule 12(b)(1) motion is a facial attack, “the court looks only at the allegations in the pleadings and does so in the light most favorable to the plaintiff.” U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). On the other hand, when the Rule 12(b)(1) motion is a factual attack, “no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Mortensen, 549 F.2d at 891. Here, Wells Fargo’s motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is a factual attack because it challenges the “actual facts” that support jurisdiction, and 4 Case 2:16-cv-03147-ES-JAD Document 13 Filed 08/28/17 Page 5 of 15 PageID: <pageID> not merely how those facts were pleaded. See U.S. ex rel. Atkinson, 473 F.3d at 514 (3d Cir. 2007). Accordingly, the Court may “review evidence outside the pleadings” in determining whether subject matter jurisdiction exists. Id. B. Rule 12(b)(6) – Failure to State a Claim “Rule 12(b)(6) requires a district court to dismiss a complaint if it fails to state a cognizable legal claim.” Ulferts v. Franklin Res., Inc., 554 F. Supp. 2d 568, 572 (D.N.J. 2008). To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “When reviewing a motion to dismiss, all allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). But “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.