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Gerald Gesiorski, Dawn Gesiorski, and Lil' Bit of v. Branch Banking & Trust Company

June 6, 2012


The opinion of the court was delivered by: Hon. John E. Jones III



Presently pending before the Court is the Motion to Dismiss (Doc. 13) of the Defendant, Branch Banking & Trust Company, formerly known as Carroll County Bank and Trust, ("BB&T"), filed April 20, 2012, seeking dismissal of the each count of the Amended Complaint (Doc. 10) filed by the Plaintiffs, Gerald Gesiorski, Dawn Gesiorski, and Lil' Bit of Chicago, collectively "Plaintiffs," on April 3, 2012. The Motion has been fully briefed and is thus ripe for disposition. For the reasons fully articulated herein, we will grant the Motion and dismiss the Plaintiffs' Amended Complaint with prejudice.


In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "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." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that "raise a right to relief above the speculative level . . . ." Victaulic Co. v. TIeman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than a "sheer possibility." Iqbal, 129 S. Ct. at 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later expounded upon and formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a Rule 12(b)(6) motion to dismiss. Iqbal, 129 S. Ct. at 1950. Next, the district court must identify "the 'nub' of the . . . complaint -- the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.


In accordance with the standard of review applicable to a Motion to Dismiss, the following facts are derived from the Plaintiffs' Amended Complaint (Doc. 10) and viewed in a light most favorable to the Plaintiffs.

Plaintiff Lil' Bit of Chicago, Inc., is a Pennsylvania business corporation with a principal business address at 20 McKinley Avenue in Hanover, York County, Pennsylvania (Doc. 10, ¶ 1). Plaintiffs Gerald and Dawn Gesiorski are adult residents of Pennsylvania identified in the Amended Complaint as husband and wife.*fn1 (Id. ¶ 2). Branch Banking and Trust Company ("BB&T") is a successor in interest to Carroll County Bank and Trust and is a banking corporation with business offices in Maryland and in North Carolina. (Id. ¶ 3).

At all times relevant to this litigation, the Gesiorskis were tenants by the entireties of a parcel known as 894 Hershey Heights Road, Penn Township, York County, and several other properties identified in a mortgage. (Id. ¶ 5). The Gesiorskis' interest was subject to a mortgage lien given to BB&T, which was the first lien on the Hershey Heights parcel in addition to being the first lien on several of the Gesiorskis' other properties. (Id.). The mortgage lien secures a mortgage note which was executed contemporaneously. (Id.). It is dated December 23, 1992 and is recorded in York County. (Id.). Plaintiff Lil' Bit of Chicago guaranteed the mortgage note. (Id.).

Sometime thereafter, in approximately 1997, BB&T filed an action in assumpsit with confession of judgment against the Plaintiffs. (Id. ¶ 6). Plaintiffs each filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Middle District of Pennsylvania that same year. (Id.). During the pendency of the bankruptcy proceedings, BB&T entered into a forbearance agreement with the Gesiorskis. (Id. ¶ 7). Both bankruptcies were later dismissed by the Bankruptcy Court without discharging the BB&T mortgage debt. (Id.).

Thereafter, on July 8, 2003, BB&T filed a mortgage foreclosure action against the Gesiorskis; that action was docketed in the York County Court of Common Pleas at Docket No. 2003-SU-005092-10. (Id. ¶ 8). A hearing for assessment of damages was conducted on May 25, 2004, resulting in a damages assessment of $349,793.50. (Id. ¶¶ 8-9). Judgment for mortgage foreclosure was entered in the face amount of $351,793.50, together with interests and costs. (Id. ¶

10). A sheriff sale was conducted on December 13, 2004, and BB&T was the successful bidder with a bid amount of $1,769.15. (Id. ¶¶ 11-12). BB&T's purchase thus created a deficiency which was not satisfied by the sale. (Id. ¶ 14). BB&T did not commence an action for deficiency judgment at any time after the sale. (Id. ¶ 16).

This action was commenced on November 29, 2007, in the Court of Common Pleas, York County, Pennsylvania, when Plaintiffs filed a Praecipe for Writ of Summons. (Doc. 1, Ex. 1). The writ was served on BB&T on February 14, 2008. (Id.). Thereafter, on December 1, 2009, counsel for the Plaintiffs made a written statutory demand upon BB&T to satisfy the outstanding judgments and mortgages. (Doc. 10, ¶ 18). On April 5, 2010, the Plaintiffs commenced an action in the York County Court of Common Pleas to have the mortgages and judgments marked satisfied and discharged. (Id. ¶ 20). On July 13, ...

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