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Ian Jobe and Catherine Jobe v. Bank of America

October 6, 2011


The opinion of the court was delivered by: (judge Caputo)



Presently before the Court is the Report and Recommendation of Magistrate Judge Martin C. Carlson. (Doc. 14). The Report recommends that the Defendants' Motion to Dismiss the Complaint (Doc. 7) be granted, and that the Plaintiffs be given leave to file an amended complaint. The Court will adopt the Report and Recommendation in full and will recommit the matter to the Magistrate Judge for further proceedings.

I. Background

Plaintiffs, a husband and wife proceeding pro se, initiated this action on August 16, 2010, alleging violations of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq. They also seek to quiet title to their property pursuant to Pennsylvania Rule of Civil Procedure 1061. In their Complaint, the Plaintiffs name Bank of America, N.A. ("Bank of America") and BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP ("BAC Home Loans"), and John Doe 1-10 as Defendants. Plaintiffs seek various forms of injunctive relief, declaratory judgments, and monetary awards in excess of $1,000,000 plus costs.

Plaintiffs allege that they are the owners of real property located in Monroe County, Pennsylvania ("the Homestead"). They maintain that they have not entered into any agreements with any of the Defendants and that "Defendants are not the owner or holder of any Promissory Note or Mortgage encumbering the Homestead." (Doc. 1 at ¶¶ 20-21).

On September 6, 2009, Plaintiff Catherine Jobe received a document from Bank of America Home Loans which purported to be an "Adjustable Rate Mortgage (ARM) Interest Rate Adjustment Notice." In response, on September 29, Plaintiff Catherine Jobe apparently mailed a response to BAC which she titled a "Qualified Written Request Under RESPA." That letter disputed the mortgage--"stating Plaintiff's belief that the account is in error; notifying BAC that any negative credit reporting would be a RESPA and FCRA violation; and requesting . . . a payoff statement." (Doc. 1 at ¶ 23). That same day, Plaintiff Catherine Jobe also claims to have sent a letter to Bank of America Home Loans described as a "Notice Under Fair Debt Collection Practices Act Via U.S. Certified Mail, Return Receipt Requested," which further disputed the mortgage and requested all information allowable under the FDCPA. (Doc.1 at ¶ 25). The Plaintiffs allege that Bank of America failed to respond to either of these letters. (Doc. 1 at ¶¶ 24, 26). However, on January 15, 2010, Plaintiffs claim to have received a letter from BAC Home Loans stating that the information they requested above exceeded the scope of that available under 12 U.S.C. § 2605, and that the Wells Fargo Bank, N.A. was the current holder of the mortgage note. (Doc. 1 at ¶ 27).

Further communication ensued between the parties resulting in five additional efforts by the Defendants to respond to the Plaintiffs' requests for information. (Doc. 1 at ¶¶ 28-33). While unclear, the correspondence from both Bank of America and BAC included a "Home Loan Summary," "Escrow Account Review," a statement, and other loan documents. (Doc. 1 at ¶¶ 28-32). Plaintiffs, however, declare that Defendant Bank of America "did not verify or include any proof or validation of the alleged debt." (Doc. 1 at ¶ 32). The Plaintiffs additionally claim that a TransUnion credit report dated August 9, 2010, for Plaintiff Catherine Jobe showed "BAC Home Loans SERV LP #70918946 ... Past Due: $25,254." (Doc. 1 at ¶ 34). However, an Experian credit report dated August 10, 2010, for Plaintiff Ian Jobe stated that the mortgage was paid and closed. (Doc. 1 at ¶ 35).

Plaintiffs claim that Defendants have no interest in the Homestead whatsoever. The Defendants, in turn, appear to allege that they have "merely performed their duties as a mortgage servicer." (Doc. 8 at 7). Unfortunately, the record is devoid of any allegations, documents, or any substantial information serving to clarify the nature of the business relationship between Plaintiffs and Defendants, or the current status of any mortgages.

Defendants have filed a joint motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The Magistrate Judge recommends that Defendant's Motion to Dismiss be granted and that the Plaintiffs be given leave to amend their Complaint. (Doc. 14). Plaintiffs have filed an objection to the Report and Recommendation (Doc. 16), and have taken the further liberty of filing an Amended Complaint. (Doc. 18). As such, the Defendants have filed a Motion to Dismiss the Amended Complaint (Doc. 21), and Plaintiffs have motioned for an extension of time to file a brief in opposition. (Doc. 23).

For the reasons below, the Court will grant the Magistrate Judge's Recommendation that the Motion to Dismiss be granted and that the Plaintiffs be given leave to amend their Complaint. However, the Amended Complaint already filed (Doc. 18) will be stricken as violating Federal Rules of Civil Procedure Rule 15(a)(2), and the Motion to Dismiss (Doc. 21) and Motion for Extension of Time to File a Brief in Opposition (Doc. 23) will be deemed moot as a result.

II. Discussion

A. Legal Standard for Reviewing a Report and Recommendation

Where objections to the Magistrate Judge's report are filed, the court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir. 1984). In making its de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675--76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376--77 (M.D. Pa. 1998).

Here, the Court reviews the portions of the report and recommendation which the Jobe Plaintiffs object to de novo. The remainder of the report and recommendation is reviewed for clear error.

B. Legal Standard for a Motion to Dismiss

"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). Detailed factual allegations are not required. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211. Instead, a complaint must "show" this entitlement by ...

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