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Conklin v. Purcell

January 31, 2007

STEPHEN G. CONKLIN, PLAINTIFF
v.
PURCELL, KRUG & HALLER, ET AL., DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Pending before the Court are motions to dismiss filed by each of the named Defendants in this action. The motions have been briefed, or the period for briefing has otherwise expired, and the motions are ripe for disposition. For the reasons that follow, the motions will be granted.

I. Background

Plaintiff, acting pro se, commenced this action by filing a complaint on August 23, 2005. (Doc. No. 1.) Plaintiff amended the complaint on October 12, 2005. (Doc. No. 3.) On November 17, 2005, Plaintiff's counsel entered an appearance in this action. (Doc. No. 8.) Nearly a month later, counsel sought an extension to file a second amended complaint in order "to properly frame the appropriate legal issues and causes of action and to correct and cure legal and factual deficiencies set forth in the First Amended Complaint, as filed by Mr. Conklin, pro se." (Doc. No. 10 ¶ 6.) On February 3, 2006, Plaintiff submitted his second amended complaint. (Doc. No. 27.)

Plaintiff alleges that a number of financial institutions and individuals violated federal and state laws regulating debt collection and foreclosure proceedings. Additionally, Plaintiff appears to allege that certain of the Defendants violated the Racketeer Influenced and Corrupt Organization Act ("RICO") and other federal laws regulating use of the mail. All Defendants have moved to dismiss the second amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Additionally, in the various reply briefs, several Defendants have noted that Plaintiff has either failed to submit a brief in opposition, or has failed to respond to certain legal arguments offered in support of the motions.

II. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the allegations made in a complaint. Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 871 (3d Cir. 1992). Although the Court must view the complaint in the light most favorable to the plaintiff, the court need not credit a complaint's bald assertions or legal conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court must determine whether "the facts alleged in the complaint, even if true, fail to support the . . . claim." Ranson v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). If the Court determines that no set of facts could be proven that would establish a right to relief, the case must be dismissed. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391 (3d Cir. 1994).

III. Factual Background

The following facts, which are accepted as true for purposes of this decision, are taken from the Second Amended Complaint.*fn1 Plaintiff and his former wife purchased certain real property located at 100 Spangler Road, Lewisberry, Pennsylvania ("Property"), using funds borrowed from Saxon Mortgage Services, Inc. ("Saxon"). The loan was secured by a mortgage on the Property. (Second Am. Compl. ¶¶ 24-25.) On or about May 15, 1997, Saxon assigned the loan to Defendant Chase Bank of Texas ("Chase") and assigned the servicing rights to the loan to Meritech Mortgage Services, Inc. (Id. ¶ 26.)

In July 1998, Plaintiff alleges that "erroneous entries were detected . . . affecting Plaintiff Conklin's account and/or balance." (Id. ¶ 29.) Plaintiff alleges that he endeavored to have his former counsel "address these and other significant discrepancies during bankruptcy, which to date, after seven years, remains in scope & in depth, un-accounted for."*fn2 (Id.) On August 6, 1998, Plaintiff filed a petition pursuant to Chapter 13 of the United States Bankruptcy Code with the United States Bankruptcy Court for the Middle District of Pennsylvania.

Plaintiff alleges that Chase, as assignee of Saxon, working with "no less than five different law firms as debt collectors, and two law firms and/or overseers," caused Plaintiff's property "to be illegally and maliciously foreclosed upon" between 1998 and 2005. (Id. ¶ 32.) The Second Amended Complaint provides little or no detail regarding these alleged foreclosures, although in the course of describing Defendants' various activities associated with foreclosure, Plaintiff concedes that he was in default of his loan obligations. (Id. ¶ 40.)

In May 2002, in connection with Plaintiff's bankruptcy proceedings, the Bankruptcy Court entered a scheduling order for a trial "regarding the long standing and unresolved disputes between Plaintiff and Defendant CHASE and its representatives." (Id. ¶ 43.) In June 2002, Saxon allegedly re-obtained the mortgage servicing rights from Meritech, although Saxon failed to notify Plaintiff of this transfer.

In November 2002, Plaintiff learned that Chase was "finally willing to allow Plaintiff to sub-divide property and further allow Plaintiff to reinstate payments" and that the trial scheduled in connection with the bankruptcy proceedings would be set aside indefinitely. (Id. ¶ 47.) Plaintiff claims that all of the named Defendants "whether in whole or in part, as each respective party may be deemed otherwise complicit thereto, knew for whatever reason(s), that Plaintiff was pre-disposed [sic] to fail in securing a sub-division, despite the fact that Plaintiff was years earlier, conditionally approved." (Id. ¶ 48.)

During 2003, Plaintiff began making mortgage payments, as instructed by Chase's counsel. (Id. ¶ 49.) Plaintiff thereafter learned that a significant portion of the payments was unaccounted for. (Id.) Plaintiff claims this is the third time that such payments were not being fully and properly accounted for, with the previous occurrences happening in 1998 and 1999. (Id.)

In April 2004, the law firm of Purcell, Krug, & Haller ("PKH"), counsel for Chase, filed a Praecipe to Reissue Writ of Execution-Mortgage Foreclosure. (Id. ¶ 51.) Plaintiff avers that Defendant PKH and its attorneys failed to include a valid complaint to foreclose upon the Property. (Id.) Plaintiff raised this issue with Defendant PKH, but the law firm ignored the defects associated with the planned sale. (Id. ¶ 52.) Plaintiff also alleges that his former counsel "surreptitiously lifted the temporary restraining order" that was in place in order to stay the foreclosure. (Id. ¶ 53.) At around the same time, Plaintiff's former counsel withdrew from representation without notifying Plaintiff. (Id.)

PKH scheduled a sheriff's sale for August 23, 2004, even though the law firm knew Plaintiff was unrepresented and was "the least sophisticated consumer" and therefore "was an easy target." (Id. ¶ 56.) The PKH Defendants failed to notify Plaintiff's former wife regarding the planned sale of the Property. (Id. ¶ 57.) Thereafter, Plaintiff engaged in a series of attempts to suspend the planned sale. (Id. ¶¶ 58-61.) Plaintiff subsequently was notified that the foreclosure sale was rescheduled from August 23, 2004, until October 18, 2004. (Id. ¶ 63.)

On or about October 5, 2004, an unidentified representative of Defendant Saxon came onto the Property without Plaintiff's permission and conducted a mortgage inspection. (Id. ¶ 68.) On October 7, 2004, an employee of nonparty ReMax Realty came onto the Property attempting to take pictures, but was rebuffed by Plaintiff. (Id. ¶ 69.) On October 15, 2004, a representative of Defendant Saxon contacted Plaintiff's father, although ...


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