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Jeffrey Pennington, et al. v. Wells Fargo Bank

October 19, 2012


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


Jeffrey and Nikki Pennington ("the Penningtons") bring this action against Wells Fargo Bank, N.A. ("Wells Fargo") and 10,000 John Does (Investors). Currently pending is Wells Fargo's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for a more definite statement under Rule 12(e). In response to the motion to dismiss, the Penningtons request that the case be bifurcated and that they be allowed to amend their complaint. For the reasons set forth below, Wells Fargo's motion to dismiss is granted with respect to all claims except their claim for quiet title.


The Penningtons claim to be the rightful owners of real property located at 4711 Greene St., Philadelphia, Pennsylvania, and dispute whether Wells Fargo is the true holder of the Penningtons' residential mortgage and note. (Compl. ¶¶ 1, 12.) They allege that on August 3, 2010, they sent a qualified written request to Wells Fargo, pursuant to the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605, seeking assurance from Wells Fargo that it would be able to convey good title to the Penningtons after a tender of the full balance due on their outstanding mortgage. (Compl. ¶ 10; id. Ex. 1.) According to the Penningtons, Wells Fargo failed to produce the requested documents within the statutorily allowable time frame.*fn1 (Id.) Because of Wells Fargo's non-response, the Penningtons sent a letter, entitled "Notice of Default, Opportunity to Cure" ("First Notice"), to Wells Fargo on October 22, 2010. (Id. ¶ 11; id. Ex. 8.) In their First Notice, the Penningtons demanded that Wells Fargo provide them with the "original wet ink signature promissory note" in order to determine if Wells Fargo was the true servicer of their mortgage. (Id. Ex. 8.) Then, on November 2, 2010, less than a month after the Penningtons sent the First Notice to Wells Fargo, Nikki Pennington granted the property located at 4711 Greene St., which had been held solely in her name, to both "Jeffrey Pennington and Nikki Pennington" via a quitclaim deed.*fn2 (Id. Ex. 7.)

The Penningtons allege that on January 28, 2011, they sent a second letter, entitled "Notice of Conditional Offer to Tender Full Amount" ("Offer Letter"), to Wells Fargo, in which the Penningtons offered to pay an amount of $142,509.73 to satisfy the balance of the note.*fn3

(Compl. ¶ 14.; id. Ex. 1) The Offer Letter proposed a meeting at 10 a.m. on March 1, 2011, "to tender the full payment upon proof of ability to convey to us clear title." (Id. ¶ 14.) The Offer Letter further stated that the meeting was to take place at 4907 Wayne Ave, Philadelphia, Pennsylvania. The Penningtons claim that Wells Fargo did not attend the scheduled meeting; subsequently, the Penningtons allege that Wells Fargo was then in default of its obligations under the mortgage due to its non-performance. (Id. ¶ 15.) The Penningtons followed with a third letter, entitled "Second Notice of Default with Opportunity to Cure," which also included a second tender offer. (Id. ¶ 16; id. Ex. 2.) Again, the Penningtons allege that Wells Fargo did not respond. (Id.)

On March 25, 2011, the Penningtons filed a complaint, entitled "Complaint to Quiet Title," with the Court of Common Pleas of Philadelphia County. Wells Fargo removed the case to the United States District Court for the Eastern District of Pennsylvania. Thereafter, Wells Fargo filed a motion to dismiss for insufficient service of process pursuant to Rule 12(b)(5) and for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. On May 16, 2012, this action was reassigned to me from the docket of the late Honorable Louis H. Pollak. On May 21, 2012, I denied Wells Fargo's motion to dismiss based on Rule 12(b)(5) because the Penningtons cured their insufficient service of process. On October 16, 2012, I held oral argument on this motion. I issued an order the following day, partially resolving some of the issues raised in Wells Fargo's motion to dismiss. I will now address the balance of the motion to dismiss under Rule 12(b)(6).


In deciding a motion to dismiss under Rule 12(b)(6), courts must "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. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks and citation omitted). But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must contain sufficient factual matter to be plausible on its face. See id. "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"; a sheer possibility that a defendant acted unlawfully is not sufficient. Id.

When faced with a motion to dismiss, "courts generally consider only the allegations in the complaint, exhibits attached to the complaint[,] and matters of public record." Pension Benefit Guar. Corp. V. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Third Circuit has held, however, that "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." Id. If such practice were not allowed, "a plaintiff with a legally deficient claim could survive a motion to dismiss by failing to attach a dispositive document on which it relied." Id.Therefore, I will consider the mortgage (which is also a matter of public record) and note attached to Wells Fargo's motion to dismiss.


The Penningtons bring six counts against Wells Fargo and the additional 10,000 John Does (Investors).*fn4 I will address each count in turn.

A. Count I: Constructive Fraud

In count I, the Penningtons allege that Wells Fargo's conduct amounts to constructive fraud. (Compl. ¶ 19.) In support of this claim, the Penningtons assert that Wells Fargo's actions "meet all of the elements of fraud, including justifiable reliance by the courts and the Plaintiffs . . . on the [defendants'] false statements . . . ." (Id. ¶ 22.) They further allege that "[d]efendants have intentionally and knowingly submitted false pleadings and have caused the courts to rely upon those false pleadings, to the detriment of the Plaintiffs [and the courts]" (id. ¶ 23); "defendants have intentionally and knowingly induced the Plaintiffs to accept mortgages based on false appraisal rates" (id. ¶ 23); and "defendants violated State laws which were specifically enacted to protect such abusive, deceptive, and unfair conduct by Defendants" (id. ¶ 24). In addition, the Penningtons allege that Wells Fargo is in violation of the following federal criminal laws: 18 U.S.C. § 1341 (Mail Fraud); 18 U.S.C. § 1343 ...

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