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Allison Ishler v. Chase Home Finance LLC

February 23, 2011


The opinion of the court was delivered by: William W. Caldwell United States District Judge


I. Introduction

Plaintiff, Allison Ishler, filed a complaint against the defendants, Chase

Home Finance LLC (Chase) and JP Morgan Chase, N.A. (JPMC), arising from her unsuccessful attempt to participate in the federal government's Home Affordable Modification Program, known as HAMP. She sets forth three claims. The first two are for fraud under Pennsylvania law, fraud in the written HAMP material sent to Plaintiff and then fraud in subsequent telephone conversations. The third claim is for a violation of the Fair Debt Collection Practices Act, alleging that the defendants violated that statute in their dealings with Plaintiff. Plaintiff invokes federal-question and diversity jurisdiction. See 28 U.S.C. §§ 1331 and 1332(a)(1).

We are considering Defendants' motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). For the reasons discussed below, we will grant Defendants' motion.

II. Standard of Review

Fed. R. Civ. P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." On a motion to dismiss, "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010)(quoted case omitted). While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974. "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." Ashcroft v. Iqbal, U.S. , , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965).

The court is not limited to evaluating the complaint alone; it can also consider documents attached to the complaint, matters of public record, and indisputably authentic documents. Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006). This includes court filings. See Churchill v. Star Enterprises, 183 F.3d 184, 190 n.5 (3d Cir. 1999)(citing Pension Benefit Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

In addition, under Fed. R. Civ. P. 9(b), fraud allegations must be pled with particularity. Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir. 2004). See also In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 347 (3d Cir. 2010). A plaintiff satisfies this requirement by pleading the "date, place or time of the fraud, or through alternative means of injecting precision and some measure of substantiation into [her] allegations of fraud." Lum, 361 F.3d at 224 (citations omitted).

III. Background

Plaintiff alleges as follows. On October 1, 2007, she mortgaged her house to JPMC, which assigned the mortgage to Chase. (Compl. ¶ 9).*fn1 On May 29, 2009, Chase obtained a default judgment for $206,336.18 against Plaintiff in state-court mortgage-foreclosure proceedings. (Doc. 6-1, state-court docket CM/ECF p. 2). On September 4, 2009, Plaintiff filed a Chapter 13 voluntary petition in bankruptcy. (Doc. 6-1 CM/ECF p. 4). On February 22, 2010, the bankruptcy case was dismissed "for material default." (Doc. 6-1, CM/ECF p. 8).

On March 24, 2010, Plaintiff received from Chase a packet of documents. (Compl. Ex. A). The first of these documents was a one-page letter informing her that she was "approved to enter into a trial period plan under" HAMP. (Doc. 1-3, CM/ECF p. 1). "To accept this offer," Plaintiff had to "make new monthly 'trial period payments' in place of [her] normal monthly mortgage payment." (Id.). She was instructed to send Chase three monthly payments of $1,312.55 each, beginning on May 1, 2010, then on June 1, 2010, and July 1, 2010. (Id.). The letter also required Plaintiff to send Defendant Chase copies of various financial documents by April 23, 2010, noting that her loan would not be modified if she either: (1) failed to make each trial period payment in the month in which it was due; or (2) failed to submit the required financial documents. (Id.). The letter concluded by informing Plaintiff that, if she submitted her documents and made her payments correctly, her mortgage would be permanently modified "if [she] qualified]." (Id.). In the meantime, her "existing loan and loan requirements remain[ed] in effect and unchanged during the trial period." (Id.). And during the trial period, Chase could post trial period payments to her mortgage account. (Id., CM/ECF p. 5).

Plaintiff submitted the financial information and made all three payments in a timely fashion. (Compl. ¶ 12). On July 1, 2010, the date of the final payment, she called Chase to ask what the next step was to obtain a permanent modification. (Id. ¶ 13). A Chase employee responded by asking for certain financial information, including Plaintiff's monthly income, bills, and any other assets or loans Plaintiff had. (Id.). The employee said "the next step would be to fill out the 'final loan modification documents,'" which Plaintiff should receive by July 6, 2010. (Id.).

On July 2 and 3, 2010, Plaintiff received several phone calls from Chase, which Plaintiff did not answer. (Id. ¶ 14). On July 3, 2010, Plaintiff called Chase. She told a Chase employee that she was expecting documents in the mail and asked why she was receiving so many phone calls. (Id.). The employee told her "the calls were computer generated" and that the employee would have the calls "pushed back" two weeks so that Plaintiff would have time to submit the documents she was expecting on July 6. (Id.).

However, the phone calls never stopped, and Plaintiff did not receive the documents by July 6. (Id. ¶ 15). On July 12, 2010, Plaintiff called Chase again. Plaintiff explained her situation to another Chase employee, and the employee told her that the "documents had not been sent for some reason" and that he would send them to her. (Id.). The employee also said that he would have the phone calls "pushed back," but Plaintiff continued to receive the calls. (Id.).

On August 3, 2010, Plaintiff still had not received the documents. (Id. ¶ 16). On that date, her attorney called Chase. A Chase employee, the third one, told him that the documentation Plaintiff had been promised was merely the same checklist of documents that she had already submitted and that the attorney could access it on Chase's website. (Id.). The employee said that a sheriff's sale had been scheduled for Plaintiff's property on August 12, and that Plaintiff could prevent the sale by sending in the requested materials. (Id.). Counsel was given a phone number to call but this number led to a dead end. (Id.). When the attorney called the Sheriff's office about the sale, he was told no sheriff's sale was scheduled for Plaintiff's property, on August 12, or any other date. (Id.).

On August 8, 2010, Plaintiff received a letter from Chase stating "that plaintiff had elected not to proceed with the loan modification either because plaintiff notified them that she wished to cancel her request, or that she failed to accept the offer materials." (Id. ¶ 17).

On August 20, 2010, Plaintiff called Chase and explained her situation.

A Chase employee told Plaintiff that: (1) "her account was closed and that her home was going into foreclosure"; (2) this "was happening because her 'short sale was not accepted'"; and (3) Plaintiff's "'records' indicated that ...

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