Summary
dismissing a RESPA QWR claim in part because "[i]n his amended complaint, plaintiff never claims that he sent defendant a qualified written request. . . ."
Summary of this case from Jones v. ABN Amro Mortgage Group, Inc.Opinion
Civil Action No. 04-704.
November 8, 2004
ORDER
AND NOW, this 8th day of November, 2004, upon consideration of defendant's motion to dismiss the amended complaint (docket entry # 24), plaintiff's response (docket entry # 25), defendant's motion for leave to file a reply and the attached reply itself (docket entry # 26), and the Court finding:
(a) On August 19, 2004, plaintiff, who is unrepresented, filed an amended complaint with six counts;
(b) On September 9, 2004, defendant filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss, and we now consider each count separately;
(c) While plaintiff's entire amended complaint is no model of clarity, it is most difficult for us to decipher the first count;
(d) While plaintiff appears to allege that defendant breached some duty, it is unclear whether he grounds it in tort law, contract law, Housing and Urban Development ("HUD") rules, or the federal Real Estate Settlement Procedures Act ("RESPA");
(e) To the extent that count one is a tort claim for negligence or breach of fiduciary duty, Pennsylvania's two-year statute-of-frauds bars it, see 42 Pa.C.S.A. § 5524(7); Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002), cert. denied, 124 S. Ct. 48 (2003);
Plaintiff alleges that, on or about June 13, 2001, the property was sold at a judicial tax sale, and defendant's alleged failure to service plaintiff's mortgage induced that sale. Am. Compl. at ¶¶ 52-54. Thus, the facts underlying this action occurred in the months leading up to June 2001. The limitations period thus commenced — at the latest — on June 13, 2001. Consequently, plaintiff's tort claims expired on June 13, 2003, even under Pennsylvania's "discovery rule." See Cochran v. GAF Corp., 666 A.2d 245, 248-49 (1995).
(f) To the extent that count one is a breach-ofcontract claim, under Pennsylvania law, to plead a cause of action for breach of contract, one must point to "a breach of a duty imposed by the contract," Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881, 884 (Pa.Super. 2000); see also Corestates Bank, N.A. v. Cutillo, 753 A.2d 1053, 1058 (Pa.Super. 1999);
(g) Not only does plaintiff fail to allege that defendant violated paragraph 2 by neglecting to pay taxes promptly but plaintiff's own exhibit demonstrates that defendant satisfied this duty by paying promptly, see Am. Compl., Ex. Y;
(h) Furthermore, although plaintiff alleges that defendant had a "responsibility to prevent the Subject Property from the judicial tax sale of June 13, 2001," a "responsibility to protect the Security Instrument from being sold at the judicial tax sale of June 13, 2001," and a "responsibility to the Plaintiff to protect the interest of the Property named in the Mortgage Contract," Am. Compl. at ¶¶ 52, 53, 54, plaintiff "points to no breach of a duty imposed by the contract,"Williams, 750 A.2d at 884;
(i) To the extent that count one alleges a violation of unspecified HUD rules, the Mortgage Agreement never incorporated them, and there is no private right of action against a mortgagee based on alleged violations of them, see Roberts v. Cameron-Brown Co., 556 F.2d 356, 360-61 (5th Cir. 1977); United States v. Thomas, 627 F.Supp. 129, 136 (N.D.Ill. 1985);
(j) Even if HUD rules did apply, the provision on which plaintiff appears to rely, 24 C.F.R. 203.378(c)(2) (2004), concerns "[d]amage to or destruction of security properties on which the loans are in default and which properties are vacant or abandoned, when such damage or destruction is due to the mortgagee's failure to take reasonable action to inspect, protect and preserve such properties," which would be factually inapplicable;
(k) Finally, to the extent that count one alleges a violation of RESPA's inquiry-response provisions, namely, 12 U.S.C. § 2605(e)(1) and (2), these sections apply only when the plaintiff sent a "qualified written request" for loan information, see 12 U.S.C. § 2605(e)(1)(B);
(l) In his amended complaint, plaintiff fails to allege that he sent defendant a qualified written request;
(m) Furthermore, Congress excluded from RESPA's ambit "credit transactions involving extensions of credit . . . primarily for business, commercial, or agricultural purposes," see 12 U.S.C. § 2606(a)(1);
(n) Plaintiff twice acknowledged that he used the property primarily for commercial purposes;
(o) In his original complaint, plaintiff highlighted, "Between the years 1995 and 2001, the Plaintiff paid the mortgage note with the rental monies received from the Subject Property," Compl. at ¶ 35;
(p) Similarly, in his amended complaint, plaintiff complained that the tax sale compelled his "loss of income from the present tenants and any future tenants," Am. Compl. at ¶ 66 (emphasis in original);
(q) Thus, plaintiff fails to state a claim under RESPA;
(r) For the above reasons, count one of plaintiff's complaint fails to state a claim for which relief can be granted;
(s) In count two, plaintiff appears to argue that, under the Mortgage Agreement and Note, defendant failed to satisfy his contractual obligation to "upset the Judicial Tax Sale," Am. Comp. at ¶ 61;
(t) Under Pennsylvania law, to plead a cause of action for breach of contract, one must point to "a breach of a duty imposed by the contract,"Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881, 884 (Pa.Super. 2000); see also Corestates Bank, N.A. v. Cutillo, 753 A.2d 1053, 1058 (Pa.Super. 1999);
(u) Aside from pointing to paragraph 10 of the Mortgage Agreement, which imposed no obligations on defendant, plaintiff points to no specific provision of the Mortgage Agreement or Note to support his claim that defendant agreed to prevent the judicial tax sale of his property;
(v) Thus, count two fails to state a claim for which relief can be granted;
In his response to defendant's motion, plaintiff characterizes his breach-of-contract claim as a breach-offiduciary duty or negligence claim. Pl.'s Resp. at 19-22. While courts hold pro se plaintiffs to a less exacting pleading standard than attorneys, plaintiffs must nevertheless plead to extent sufficient to notify defendants about the specific legal basis for their alleged liability.
Thus, plaintiff cannot save count two merely by restyling it as a tort claim in his motion-to-dismiss response. Even if he could, Pennsylvania's two-year statute-of-frauds would bar it. See 42 Pa.C.S.A. § 5524(7);Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002), cert. denied, 124 S. Ct. 48 (2003).
(w) In count three, plaintiff asserts that defendant "failed in their obligation to regain Plaintiff's OWNERSHIP of the Subject Property and `SECURITY INSTRUMENT'" and that "Plaintiff was deprived of his property when [defendant] failed to prevent the Subject Property from the judicial tax sale of June 13, 2001," Am. Compl. at ¶¶ 64, 65;
(x) To the extent plaintiff asserts a conversion claim or other type of tort claim, Pennsylvania's statute of frauds bars it, see 42 Pa.C.S.A. § 5524(3) (7); Johnson, 313 F.3d 128, 135 (3d Cir. 2002), cert. denied, 124 S. Ct. 48 (2003);
(y) To the extent plaintiff claims defendant breached a contractual duty to regain his ownership of the property in question or prevent the June 13, 2001 tax sale, that claim misses the mark for the same reasons plaintiff's apparent breach-of-contract claims fail in counts one and two: he identifies no contractual duty that defendant breached;
(z) In count four, plaintiff asserts a claim on behalf of HUD, alleging that defendant "reported false information to HUD which FRAUDULENTLY INDUCED the evaluation of HUD's final determination," Am. Compl. at ¶ 72;
(aa) Even if plaintiff's claim that defendant defrauded HUD were true, plaintiff alleges only that defendant deceived HUD, not him; therefore, plaintiff lacks standing to assert a fraud claim on HUD's behalf, see In re Allegheny Int'l, Inc., 954 F.2d 167, 178 (3d Cir. 1992) ("Under Pennsylvania law, inducing another to enter into a contract by means of fraud or a material misrepresentation, when the other party was under no duty to enter the contract, is a key element of a claim for fraudulent inducement") (emphasis added);
In his response to defendant's motion, plaintiff argues that "Plaintiff in his Amended Complaint mistakenly referred to Fraudulent `Inducement' by using the `Common Definition' instead of the `Legal Definition.'" Pl.'s Resp. at 25. Plaintiff then restyles his fourth claim as fraud instead of fraudulent inducement. While plaintiff's re-characterization may be meaningful technically, it is meaningless functionally: Plaintiff still claims only that defendant defrauded HUD, a third party.
(bb) Thus, plaintiff's fourth claim fails to state a claim on which relief can be granted;
(cc) As for plaintiff's fifth claim, he himself concedes that it fails to state a claim and should be dismissed, Pl.'s Resp. at 4 ("Plaintiffagrees with Cendant that the FIFTH claim of action should be dismissed");
(dd) Finally, in count six, plaintiff seeks to hold defendant liable for reporting "damaging credit information claiming that Plaintiff is in credit mortgage default to All three Credit Report Agencies (Trans Union, EquiFax and TrueCredit)," Am. Compl. at ¶ 87;
(ee) He also claims that defendant's reporting violated RESPA and unspecified HUD rules, Am. Compl. at ¶ 88;
(ff) As for defendant's reporting of damaging credit information about plaintiff, plaintiff nowhere claims that this reporting is false or incorrect;
(gg) Thus, he fails to allege any type of fraud;
(hh) As noted above, there is no private right of action against a mortgagee based on alleged violations of HUD rules and regulations, seeRoberts v. Cameron-Brown Co., 556 F.2d 356, 360-61 (5th Cir. 1977);United States v. Thomas, 627 F.Supp. 129, 136 (N.D.Ill. 1985);
(ii) Finally, to the extent that count could be construed to allege a violation of RESPA's inquiry-response provisions, namely, 12 U.S.C. § 2605(e)(1) and (2), these sections apply only when the plaintiff sent a "qualified written request" for loan information, see 12 U.S.C. § 2605(e)(1)(B);
(jj) In his amended complaint, plaintiff never claims that he sent defendant a qualified written request and in any event RESPA is inapplicable because plaintiff twice acknowledged that he used the property primarily for commercial purposes, see Compl. at ¶ 35; Am. Compl. at ¶ 66; see also 12 U.S.C. § 2606(a)(1); and
(kk) Thus, count six fails to state a claim for which relief can be granted,
It is hereby ORDERED that:
1. Defendant's motion to dismiss plaintiff's complaint in the entirety is GRANTED;
2. Defendant's motion for leave to reply in further support of its motion to dismiss is GRANTED and the Clerk of Court is directed to file defendant's reply; and
3. The Clerk of Court shall CLOSE this matter statistically.