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Annette Branche v. Wells Fargo Mortgage

August 16, 2012

ANNETTE BRANCHE, PLAINTIFF ::
v.
WELLS FARGO MORTGAGE COMPANY, ET AL., DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

Presently before the court is a motion to dismiss (Doc. 69) filed by Defendant Wells Fargo Mortgage Company ("Wells Fargo"). Wells Fargo seeks to dismiss Plaintiff's Second Amended Complaint. Also pending before the court is Wells Fargo's motion (Doc. 74) to strike Plaintiff's brief in opposition to Wells Fargo's motion to dismiss. Wells Fargo argues that Plaintiff's opposition brief should be stricken because it was not timely filed. Both motions are ripe for review.

In its motion to dismiss, Wells Fargo raises the following arguments. First, Wells Fargo contends that, under Rule 9(b) of the Federal Rules of Civil Procedure, a claim alleging a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law must be pleaded with particularity; and Wells Fargo seeks dismissal of Count III of Plaintiff's Second Amended Complaint on the basis that it falls short of this standard. Second, Wells Fargo asks the court to dismiss Count IV of the Second Amended Complaint because the order dated March 6, 2012 already dismissed this count with prejudice. Third and finally, Wells Fargo contends that the Second Amended Complaint should be dismissed in its entirety under Rule 12(b)(6) for failure to state a claim upon which relief may be granted.

We will address the arguments for dismissal of each count of the Second Amended Complaint in turn. We will then turn to Wells Fargo's motion to strike.

II. Legal Standard

A. Motion to Dismiss Under Rule 9(b)

Under Rule 9(b), a party alleging fraud or mistake "must state with particularity the circumstances constituting fraud or mistake." FED R. CIV. P. 9(b). This rule "requires plaintiffs to plead the who, what, when, where and how: the first paragraph of any newspaper story." Institutional Investors Group v. Avaya, Inc., 564 F.3d 242, 253 (3d Cir. 2009) (quoting In re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999)). The rule's purpose is to require plaintiffs to provide sufficient information so that defendants can respond to the claims against them. Illinois Nat'l Ins. Co. v. Wyndham Worldwide Operations, Inc., 653 F.3d 225, 233 (3d Cir. 2011).

B. Motion to Dismiss Under Rule 12(b)(6)

When reviewing a motion to dismiss for failure to state a claim, under Rule 12(b)(6), we must accept all of Plaintiff's factual allegations as true, construe them in the light most favorable to her, and determine if, "under any reasonable reading of the pleading, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). Our analysis consists of two parts: first, separating the "legal elements of a claim" from the factual allegations, and second, determining whether the factual allegations "show" a plausible entitlement to relief. Id. at 210-11.

III. Discussion

A. Count I

In Count I, Plaintiff complains of a breach of contract. Wells Fargo argues that this count fails to state a claim upon which relief can be granted, for the following reasons. First, Plaintiff fails to allege that she is a party to the mortgage contract. Second, although Plaintiff suggests that Wells Fargo is contractually obligated to permit Plaintiff to safely occupy the mortgaged premises, and to take reasonable steps to ensure timely payments to the contractors for their repair work on the mortgaged premises, Wells Fargo contends that Plaintiff fails to identify any terms of the mortgage contract under which such duties arise. Wells Fargo also argues that, absent an allegation that the premises were unsafe, Plaintiff fails to establish a breach of the alleged obligation to permit a resident to safely occupy them. Finally, Wells Fargo disputes the existence of a second contract, arising from an exchange of promises evidenced by letters from Wells Fargo to the Attorney General and to Congressman Tim Holden. We will address these arguments in turn.

First, we reject Wells Fargo's argument that Plaintiff fails to allege that she is a party to the contract. Plaintiff's Second Amended Complaint includes allegations that Plaintiff took title to the mortgaged premises (Doc. 68 ¶ 10), that Plaintiff made mortgage payments on the property (id. ¶ 11), and that, when the mortgage became delinquent, Plaintiff and Wells Fargo negotiated a workout agreement (id. ¶¶ 17-18). Accepting these allegations as true, and ...


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