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Pietro Barbieri, et al. v. Wells Fargo & Co

July 27, 2012

PIETRO BARBIERI, ET AL.
v.
WELLS FARGO & CO, ET AL.



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court are Defendants' Motion to Dismiss Plaintiffs' Complaint or, in the Alternative, for a More Definitive Statement (ECF No. 13), Plaintiffs' Motion to Enlarge Time to Respond to Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and Plaintiffs' Motion to Amend Its Complaint to Include Additional Counts, Including But Not Limited to R.I.C.O. Violations of The Racketeering Influenced Corrupt Organizations Acts (ECF No. 14), and Defendants' Motion for Issuance of a Protective Order Staying Discovery Pending Resolution of Defendants' Motion to Dismiss (ECF No. 18). For the following reasons, Defendants' Motion to Dismiss will be dismissed as moot, Defendants' Motion for a Stay will be granted, and Plaintiffs' Motion for an Extension will be granted in part and denied in part.

I. BACKGROUND

A. Factual Background

This case arises out of a dispute related to Plaintiffs' home mortgage. Plaintiffs Pietro and Jean Marie Barbieri allege that, in October 2005, they received a home equity loan from IT Financial, which was secured by Plaintiffs' home in West Chester, Pennsylvania. (Compl. ¶ 11, ECF No. 1.)*fn1 The loan and mortgage were subsequently assigned to Defendants Wells Fargo Bank ("Wells Fargo") and Federal National Mortgage. (Id.)*fn2 Plaintiffs allege that in October 2008, Defendants unilaterally changed the terms and conditions of the mortgage agreement and have refused to provide Plaintiffs with information about these changes despite Plaintiffs' repeated requests. (Id. at ¶¶ 12-13.) Plaintiffs further allege that, in April 2009, Plaintiffs were informed by representatives of Defendants that their loan was placed into forbearance. (Id. at ¶ 19.) Plaintiffs learned that, in order to be placed into the forbearance program, Plaintiffs would have had to have made a specific request and sign documents. (Id. at ¶ 21.) Plaintiffs claim that they never requested information related to the forbearance program, nor signed or even received documentation concerning a loan modification. (Id. at ¶ 22.)

In May 2009, a representative from Wells Fargo informed Plaintiffs that they could temporarily suspend making mortgage payments since their mortgage had been assigned to the "Obama Financial Recovery Project" and the processing of documents for such project was pending. (Id. at ¶ 23.) Plaintiffs claim that they never requested to be placed into this project and advised the Wells Fargo representative that the placement was done without their knowledge or consent. (Id. at ¶ 24.) In June 2009, Wells Fargo advised Plaintiffs by letter that, pursuant to their request, the loan modification and placement into the project had been cancelled. (Id. at ¶ 28.) Also in June 2009, Defendants placed Plaintiffs into foreclosure and accelerated the mortgage payments. (Id. at ¶ 29.) Plaintiffs allege that, despite numerous requests to provide them with the terms of the mortgage modification and a statement of accounts, Defendants continue to refuse to provide this information. (Id. at ¶ 31.) Plaintiffs further allege that, in June 2009, Defendants "enter[ed] false and misleading information to at least one of several credit-reporting entities." (Id. at ¶ 34.)

B. Procedural History

Plaintiffs commenced this action on July 20, 2009, alleging the following: breach of contract (Count I); fraud and misrepresentation (Count II); "Violation of the [sic] Title 12 and 15" (Count III); defamation by credit report (Count IV); and "Violation of 26 CFR 1.6001" (Count V). (Compl.) On October 5, 2009, Defendants filed a Motion to Dismiss Plaintiffs' Complaint or, in the Alternative, for a More Definitive Statement. (Defs.' Mot. Dismiss, ECF No. 13.) The Motion was filed on the Court's Electronic Case Filing System ("ECF"). Plaintiffs never responded to Defendants' Motion to Dismiss. Plaintiffs allege that Defendants still have not served them with a copy of the Motion. They admit, however, that they received a copy through ECF.*fn3 On October 19, 2009, Plaintiffs filed a Motion for an Extension of Time to Respond to Defendants' Motion to Dismiss and Motion to Amend. (Pls.' Extension Mot., ECF No. 14.) Plaintiffs' Extension Motion requests that the Court grant Plaintiffs leave to amend the Complaint. Plaintiffs' Motion also requests expedited discovery related to "the additional bad acts performed by Defendant[s] since the filing of the Complaint." (Id. at Proposed Order.) On November 4, 2009, Defendants filed a Response to Plaintiffs' Extension Motion. (ECF No. 15.) On November 17, 2009, Plaintiffs filed a Reply to Defendants' Response. (ECF No. 16.)

On February 18, 2010, Plaintiffs served Defendants with document requests. On March 3, 2010, Defendants filed a Motion for a Protective Order, which seeks a stay of discovery pending resolution of Defendants' Motion to Dismiss. (ECF No. 18.) On March 12, 2010, Plaintiffs filed a Response to Defendants' Motion for a Protective Order. (ECF No. 19.)*fn4

II. DISCUSSION

A. Plaintiffs' Request to Amend the Complaint

Federal Rule of Civil Procedure 15(a) allows a party to amend its pleading "once as a matter of course" within twenty-one days after serving the pleading or within twenty-one days of service of a responsive pleading, including a motion under Rule 12(b). Fed. R. Civ. P. 15(a)(1). Rule 15(a) also allows a party to amend its pleading with leave of the court or if the opposing party consents in writing. Fed. R. Civ. P. 15(a)(2). Where a defendant responds to a complaint with a motion to dismiss, "the plaintiff may amend the complaint once 'as a matter of course' without leave of court." Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citation omitted). Plaintiffs seek to amend the Complaint to assert additional counts, including but not limited to, a count under the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, et seq. Defendants do not oppose Plaintiffs' request to amend the Complaint. This is Plaintiffs' first amended complaint. Since Defendants have responded to the original Complaint with a motion to dismiss under Rule 12(b)(6), Plaintiffs are entitled to amend the Complaint once "as a matter of course without leave of the court." See Shane, 213 F.3d at 115. Accordingly, Plaintiffs' request to amend the Complaint will be granted.

Since Plaintiffs will be filing an amended complaint, Defendants' Motion to Dismiss will be dismissed as moot. Plaintiffs' request for an extension of time to respond to ...


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