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Jodie L. Hocker v. Citimortgage

January 20, 2012

JODIE L. HOCKER, PLAINTIFF,
v.
CITIMORTGAGE, INC., ET AL., DEFENDANTS



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

MEMORANDUM

Presently pending before the Court are motions to dismiss filed by Defendant CitiMortgage, Inc. ("CitiMortgage") (Doc. No. 98), and Defendants John E. Deardorff, Jr. and Lisa Deardorff ("the Deardorffs") (Doc. No. 100). The motions have been fully briefed and are ripe for disposition. For the reasons that follow, the Court will grant CitiMortgage's motion and deny the Deardorffs' motion, except with respect to the claim raised against Lisa Deardorff in the tenth count of Plaintiff's amended complaint.

I. BACKGROUND

According to Plaintiff Jodie L. Hocker's amended complaint, this case arises from a housing fraud scam operated by individuals who targeted homeowners facing the loss of their homes. Plaintiff's home was scheduled to be sold at a sheriff's sale in December 2007. (Doc. No. 56 ¶ 17.)On October 31, 2007, three individuals, including Defendants James Deardorff and Joanne Seeley, came to Plaintiff's home to notify her of a program, which was purported to assist her with her financial difficulties and allow her to keep her home. (Id. ¶¶ 18, 20.) Seeley explained that they could help Plaintiff with her financial problems by refinancing her home and finding her work that would provide more than enough income to make new monthly payments.

(Id. ¶¶20-22.)At a settlement conference held on November 30, 2007, Plaintiff signed several documents, including a deed of her home to the Deardorffs. (Id. ¶¶ 28-32.)The settlement also included a mortgage and note issued by CitiMortgage to the Deardorffs. (Id. ¶ 30.) Plaintiff asserts that she was not given time to review the documents before signing them and that she believed that she was only refinancing her home. (Id. ¶¶ 33, 35.)

In July 2008, Plaintiff realized that she had signed a deed conveying title of her home to the Deardorffs. (Id. ¶ 49.) On July 28, 2008, Plaintiff met with James Deardorff and Lawrence Massey, a realtor working as a collection agent for Deardorff and Seeley. (Id. ¶¶ 50, 52, 62.) During this meeting, Deardorff and Massey informed Plaintiff, who was behind on her monthly payments, that she had until August 15, 2008 to accept a $500 payment and "get out of the house." (Id. ¶ 51.)Plaintiff indicated that she would not be able to leave the house by that date. (Id. ¶¶ 64, 69.) Plaintiff has had no further contact with any of the Defendants, but agents of CitiMortgage have left notices on Plaintiff's door addressed to James Deardorff. (Id. ¶¶ 83-84.)

Plaintiff initiated this lawsuit by filing a complaint on May 22, 2009. (Doc. No. 1.) On October 23, 2009, Plaintiff filed an amended complaint in which she brings a litany of claims against fifteen defendants. (Doc. No. 56.) On September 20, 2011, CitiMortgage filed a motion to dismiss the claims stated against it in the first, second, fourth, ninth, and fourteenth counts of Plaintiff's amended complaint. (Doc. No. 98.) These five counts represent the only claims pending against CitiMortgage. CitiMortgage supported its motion with a brief in support. (Doc. No. 99.) On September 30, 2011, the Deardorffs filed a motion to dismiss the claims stated against them in the sixth, eighth, tenth, and eleventh counts as well as the claims stated against John Deardorff in the twelfth and thirteenth counts. (Doc. No. 100.) These six counts represent the only claims pending against the Deardorffs. The Deardorffs supported their motion with a brief in support. (Doc. No. 101.) Plaintiff failed to respond to either motion. On October 19, 2011, and November 2, 2011, the Court ordered Plaintiff to show cause why the motions to dismiss should not be granted. (Doc. Nos. 102, 105.) Plaintiff responded on October 27, 2011, and November 8, 2011, with requests that the Court either grant her additional time to file briefs in opposition or to find substitute counsel. (Doc. Nos. 103, 106.) On November 22, 2011, the Court ordered Plaintiff to file briefs in opposition on or before November 28, 2011. (Doc. No. 107.) On December 1, 2011, after Plaintiff filed insufficient "responses" to the motions to dismiss (Doc. Nos. 108, 109), the Court once again ordered Plaintiff to file briefs in opposition by December 8, 2011 (Doc. No. 110). Ultimately, Plaintiff filed an untimely brief in opposition to CitiMortgage's motion on December 9, 2011 (Doc. No. 111), and an untimely brief in opposition to the Deardorffs' motion on December 15, 2011 (Doc. No. 114). CitiMortgage filed a reply brief on December 19, 2011. (Doc. No. 115.)

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In reviewing a motion to dismiss, a court may "consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). The motion will only be properly granted when, taking all factual allegations and inferences drawn therefrom as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Indeed, the United States Supreme Court has held that while the 12(b)(6) standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of an entitlement to relief . . . . [F]actual allegations must be enough to raise a right to relief above the speculative level.'" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

III. DISCUSSION

CitiMortgage and the Deardorffs urge this Court to dismiss all counts Plaintiff raises against them. Specifically, CitiMortgage has moved to dismiss the following claims raised in Plaintiff's amended complaint: (1) violations of the Real Estate Settlement Procedures Act ("RESPA"); (2) negligent misrepresentation; and (3) negligence. The Deardorffs have moved to dismiss the following claims raised in the amended complaint: (1) violations of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"); and (2) multiple claims of fraudulent misrepresentation. The Court will address each claim in turn.

A. Claims Against CitiMortgage

1. Claims Under Section 2607 of RESPA

In the first and second counts of her amended complaint, Plaintiff makes claims against CitiMortgage under Section 2607 of RESPA, which prohibits fees or kickbacks for referrals made pursuant to real estate settlements involving federally related mortgage loans. 12 U.S.C. ยง 2607. Plaintiff then makes a series of allegations that relate to the settlement conference that occurred on November 30, 2007, when Plaintiff met with Defendants Seeley and James Deardorff. Plaintiff alleges that Seeley, who was acting as an agent of CitiMortgage, agreed in a HUD-1 settlement that Plaintiff ...


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