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Dawn M. Schnell v. the Bank of New York Mellon

November 21, 2011

DAWN M. SCHNELL, PLAINTIFF
v.
THE BANK OF NEW YORK MELLON, ET AL., DEFENDANTS



The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM

I. Introduction

Plaintiff Dawn M. Schnell ("Schnell") is a citizen of Pennsylvania who has filed a complaint against Defendants Bank of New York Mellon ("BNY"), a citizen of Texas, and Bank of America ("BOA"), a citizen of North Carolina (collectively "Defendant Banks"). *fn1 Schnell accuses the banks of first deceiving her and then pressuring her into accepting a mortgage she and her late husband could not afford. *fn2

Jurisdiction is based on diversity under 28 U.S.C. § 1332. Both sides agree that Pennsylvania law is applicable. For the reasons outlined below, I will grant Bank Defendants' Motion to Dismiss.

II. Background

On February 23, 2007, Schnell and her late husband Thomas closed on a mortgage refinance loan on their property at 47 Rorer Avenue, Hatboro, PA 19040 for a principal amount of $233,000. According to Schnell, BOA agents initially offered her a loan with a fixed 7.75% interest rate for thirty years and then, prior to closing, switched the rate to an adjustable rate of 9.75% for the first two years. The adjustable-rate mortgage ("ARM") was subject to a pre-payment penalty and had an interest rate ceiling of 16.75%.

Schnell alleges that BOA agents completed "at least two" loan applications on her behalf. She provided all of the necessary information, including tax returns and completed IRS forms, and those documents indicated that her household's monthly income was approximately $4,842.00. Yet on the initial loan application, BOA agents increased her household's monthly income to $6,200.00. BOA agents purportedly manipulated her income in order to secure her a loan that she ultimately could not afford. Defendant Banks admit that Schnell signed an earlier loan application on February 19, 2007 that listed her monthly income at the higher rate. Mot. Dismiss Ex. G. But on February 23, 2007, she signed the application that actually provided her with the loan. This application clearly lists her monthly household income as $4,842.93. Mot. Dismiss Ex. F. On February 23, 2007, Schnell also signed the "Adjustable Rate Note" addendum that permitted the interest rate to fluctuate and set a two-year prepayment penalty. Mot. Dismiss Ex. E.

Schnell made timely payments for several years. Beginning in April 2009, however, she stopped making her monthly principal and interest payments and eventually defaulted. BNY, as the assignee of the loan, filed for foreclosure in the Court of Common Pleas of Montgomery County, Pennsylvania. Schnell responded with a flurry of filings, and the court eventually issued a scheduling order preventing her from filing any additional pleadings without first obtaining the court's permission. Schnell then filed this federal action. Montgomery County Court of Common Pleas Judge Bernard Moore stayed the foreclosure action pending the resolution of this matter.

III. Legal Standard

A motion to dismiss should be granted under Rule 12(b)(6) if the moving party "under any reasonable reading of the complaint . . . may be entitled to relief." Kerchner v. Obama, 612 F.3d 204, 207 (3d Cir. 2010) (internal quotation marks omitted). The complaint must allege facts sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 884 (2009). Rather, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In deciding a motion to dismiss under Rule 12(b)(6), a court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff."

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). This "assumption of truth" is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 885.

"As a general matter, a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings. However, an exception to the general rule is that a document integral to or explicitly relied upon in the complaint may be considered . . . ." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis omitted) (citations omitted) (internal quotation marks omitted). Thus, "a court may . . . consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994). Further, "a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

IV. Discussion

Schnell brings eight counts against Defendant Banks. She brings two counts against BNY (Conspiracy & Unfair Trade Practices and Consumer Protection Law (UTPCPL)) and six counts against BOA (Conspiracy; Fraud; Negligent Misrepresentation; UTPCPL; Promissory Estoppel; & Credit Repair Organizations Act (CROA)).

a. Counts I & IV: Conspiracy (BNY) & Conspiracy (BOA) *fn3

In Counts I and IV of her Complaint, Schnell accuses BNY and BOA of conspiracy. Schnell accuses the former of civil conspiracy and the latter of criminal conspiracy.

According to the Pennsylvania Supreme Court: "To prove a civil conspiracy, it must be shown that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means." Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 (Pa. 1979) (citations omitted). The Court added: "Proof of malice, i.e., an intent to injure, is ...


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