The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION and ORDER OF COURT
Defendants, United States Department of Housing and Urban Development and its Secretary, Alphonso Jackson (hereinafter "HUD"), filed a Motion to Dismiss pursuant to Rule 12(b)(1) asserting that this court lacks jurisdiction and Rule 12(b)(6) asserting that Plaintiffs' claims lack merit. (Docket No. 13). In addition, HUD filed a separate Motion to Dismiss pursuant to Rule 12(h)(3)*fn1 based on a lack of subject matter jurisdiction under Article III. (Docket No. 24). Plaintiffs, Jean Massie, Shirley Sowell, Dale Peoples, Aline Reid, Yugonda Alice, Louise Brandon, and Yevorn Gaskin, filed responses thereto.*fn2 (Docket Nos. 22 and 31). After careful review of the parties submissions and based on the reasons set forth below, the Motion to Dismiss at Docket No. 13 is granted and the Motion to Dismiss at Docket No. 24 is denied.
During the time in question, HUD held three defaulted mortgages on a multi-family property that is owned by a cooperative incorporated as Third East Hills Park, Inc. (TEHP"). Plaintiffs are seven shareholders in the cooperative. HUD initiated foreclosure proceedings. Plaintiffs filed a Complaint in this court seeking declaratory and injunctive relief. There are seventeen counts in the Complaint all alleging that HUD violated various statutes and breached its contracts in its efforts to foreclose on the multi-family property.*fn3 (Docket No. 1). HUD filed a Motion to Dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. (Docket No. 13). HUD also filed a separate Motion to Dismiss pursuant to Rule 12(h)(3) for lack of subject matter jurisdiction under Article III. (Docket No. 24). Plaintiffs responded thereto. (Docket Nos. 22 and 31). The issues are now ripe for review.
A motion to dismiss under Rule 12(h)(3) of the Federal Rules of Civil Procedure challenges the court's jurisdiction over the subject matter. Fed. R. Civ. P. 12(h)(3). Likewise, a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the jurisdiction of the court to address the merits of the plaintiff's suit. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) attack may argue that the plaintiff's federal claim is immaterial and made solely for the purpose of obtaining federal jurisdiction, is insubstantial and frivolous (collectively referred to a "facial attacks") or, alternatively, the attack may be directed at "the existence of subject matter jurisdiction in fact (referred to as a "factual attack")." Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Since HUD's Motion is supported by sworn statements of fact, it is a factual, rather than a facial, attack on the court's subject matter jurisdiction. International Assoc. of Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1982). As such, this Court is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549 F.2d at 891. Thus, no presumption of truthfulness attaches to the allegations in Plaintiffs' Complaint (in contrast to the presumption applied under a Rule 12(b)(6) motion or a Rule 12(b)(1) facial attack). Mortensen, 549 F.2d at 891. Plaintiffs bear the burden of persuading the court that it has jurisdiction as compared to the burden of Defendants under a Rule 12(b)(6) motion of convincing the court that Plaintiffs have failed to state a claim. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991), cert. denied, 501 U.S. 1222 (1991). If I determine that this Court does not have subject matter jurisdiction over the case, I must dismiss the action. Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997).
III. MOTION TO DISMISS PURSUANT TO RULE 12(h)(3) - Docket No. 24
HUD requests that this Court consider its second Motion to Dismiss (Docket No. 24) first since jurisdiction is a threshold matter. (Docket No. 25, pp. 6-7). I will do so. The thrust of HUD's argument is that since the foreclosure sale has been completed,*fn4 Plaintiffs no longer have standing to sue such that this Court is deprived of its jurisdictional Article III power because there is no longer a case or controversy. Id. All parties agree that under Article III of the United States Constitution, federal courts are limited to adjudicating over actual ongoing cases or controversies. (Docket No. 25, p. 6 and Docket No. 31, p. 6). Generally, to establish Article III standing, a plaintiff must demonstrate the following:
1) An "injury in fact" which is:
a) concrete and particularized, and
b) actual or imminent, not conjectural or hypothetical;
2) A causal connection that is "fairly traceable" between the injury and the conduct ...