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YASMIN MACK v. BEAR STEARNS RESIDENTIAL MORTGAGE CORPORATION

November 30, 2010

YASMIN MACK,
PLAINTIFF,
v.
BEAR STEARNS RESIDENTIAL MORTGAGE CORPORATION, FORECLOSURE SOLUTION SPECIALISTS, INC., LCMACK, LLC, LISA WRIGHT, REBECCA GREEN, SAMUEL PRICE, DAVID MARKS, 1ST CONTINENTAL MORTGAGE, U.S. BANK N.A., EMC MORTGAGE CORP., REGINA J. BROWN, JOHN DOES 1-10. DEFENDANTS.



DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

Plaintiff Yasmin Mack ("Mack") alleges in this action that she sought help to avoid foreclosure on her Philadelphia home, only to have the house stolen by those who promised to assist her. Presently before the Court are three motions to dismiss Mack's First Amended Complaint: defendant Samuel Price's ("Price") Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted; defendant Regina J. Brown's ("Brown") Motion to Dismiss for Lack of Subject Matter Jurisdiction; and the Motion to Dismiss Plaintiff's First Amended Complaint for Failure to State a Claim of defendants Bear Stearns Residential Mortgage Corporation ("Bear Stearns"), U.S. Bank N.A., as Trustee ("U.S. Bank"), and EMC Mortgage Corporation ("EMC") (collectively, "the EMC Defendants"). For the reasons that follow, the EMC Defendants' motion to dismiss is granted in part and denied in part, and the motions to dismiss filed by Brown and Price are denied.

II. BACKGROUND

Mack faced impending foreclosure on her home in Philadelphia in 2006 when she received a solicitation from defendant Foreclosure Solution Specialists, Inc. ("FSS"), offering to help keep her in her home. (Am. Compl. ¶¶ 22-25.) When she called FSS, Mack spoke to defendant Rebecca Green ("Green"), who led her to believe FSS was associated with Mack's then-current mortgagee, Wachovia. (Id. ¶¶ 30-31.) Green encouraged Mack to refinance her home through FSS. (Id. ¶¶ 35-37.) She also told Mack that Mack first had to sign a quitclaim deed, which would not be recorded but instead torn up after Mack repaid FSS. (Id. ¶¶ 38-39.)

On June 4, 2007, defendant Lisa Wright ("Wright"), a principal in FSS, faxed to Mack a series of documents prepared by Price, FSS' attorney. Wright told Mack she had to have the documents notarized for the refinancing to go forward. (Id. ¶¶ 40-43.) Green then told Mack she had to sign another deed -- also not to be recorded but rather escrowed and returned to Mack after she made a year of payments on her new loan. (Id. ¶ 44.)

Under the proposed terms of the refinancing, Mack would receive a portion of the $69,000 in equity she had in the property, while the remainder would be escrowed and used to pay half of her mortgage payments for a year. (Id.) Mack was told to make mortgage payments to her refinance lender, Bear Stearns. (Id.)

Brown, a notary and the closing agent for the transaction, met Mack on August 23, 2007 at Mack's sister's house. (Id. ¶ 42 at 8.)*fn1 Mack initially refused to sign any of the closing documents because they identified her as the "seller." (Id. ¶ 43 at 8.) Brown assured Mack that FSS was a legitimate organization. (Id. ¶¶ 44-45 at 8.) Brown added that Mack should write "Distribute only to Yasmin Mack" next to any reference in the documents to distributions that were to be made to the seller. (Id. ¶ 50.) Mack then signed the documents. (Id.)

Several days later, a check was issued to Price for $65,434.08 based on a HUD-1 settlement sheet sent to the settlement agent, Netco. (Id. ¶ 51.) The fax was forged by defendant 1st Continental Mortgage ("1st Continental") at Price's direction. (Id. ¶ 52.)

After closing, Mack did not receive any funds from the transaction. (Id. ¶ 55.) She attempted to schedule meetings with Green and Wright to figure out what was happening, but neither Green nor Wright showed up for any of the meetings. (Id. ¶¶ 57-58.)

In January 2008, Mack received a bill demanding she pay rent to the purported owner of the house, defendant David Marks ("Marks"). Mack subsequently discovered that defendants Wright, Green, FSS and LCMack, LLC ("LCMack") had sold and/or deeded her home to Marks. (Id. ¶¶ 60.)*fn2 Price, Marks, Wright, Brown and Green converted and shared the money Mack was supposed to have received from closing. (Id. ¶ 69.)

Marks failed to pay the mortgage, and the property was foreclosed upon and sold at a sheriff's sale in June 2009. (Id. ¶ 67.) At the time, defendant U.S. Bank was the assignee of the mortgage originated by Bear Stearns. (Id. ¶¶ 7, 16.) Defendant EMC acted as the loan's Mack initiated this action on November 13, 2009 and filed her First Amended Complaint on July 27, 2010. In the Amended Complaint, Mack asserts (1) a claim for unjust enrichment against the EMC Defendants; (2) a claim against FSS, Wright and Green for violating the Pennsylvania Credit Services Act, 73 Pa. Cons. St. § 2182, et seq.; (3) a claim against all defendants for violating the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa. Cons. Stat. § 201-1, et seq.; and (4) a claim against FSS, Wright and Green for violating the federal Credit Repair Organizations Act ("CROA"), 15 U.S.C. § 1679, et seq. foreclosing entity. (Id. ¶ 15.)

III. THE EMC DEFENDANTS' MOTION

The EMC Defendants assert in their motion to dismiss that the Amended Complaint fails to state a claim for a violation of UTPCPL or unjust enrichment. Mack concedes the UTPCPL claim as to the EMC Defendants. (Pl.'s Resp. ΒΆΒΆ 11-25.) ...


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