United States District Court, E.D. Pennsylvania
FRANK ADAMS and CHRISTIE A. ADAMS, Ind. & as H/W, Plaintiff,
WELLS FARGO BANK, N.A., and PHELAN, HALLINAN, DIAMOND & JONES LLP, formerly known as PHELAN, HALLINAN & SCHMIEG, LLP, Defendant.
SCHMEHL, J. JLS
this court is the Motion to Dismiss Plaintiffs' First
Amended Complaint (“FAC”) Pursuant to
Fed.R.Civ.P. 12(b)(6) filed by Defendant Wells Fargo Bank
(“Wells Fargo”), and the motion to dismiss filed
by Defendant Phelan, Hallinan, Diamond & Jones, LLP
(“Phelan”) on May 2, 2016. Plaintiffs Frank and
Christie A. Adams (hereinafter “Plaintiffs”)
filed opposition to both motions. Having read the
parties' briefing, I will deny the motion of Wells Fargo
(Docket No. 12) as to all claims except the wrongful use of
civil proceedings claim (Count I), and I will deny the motion
of Phelan in its entirety (Docket No. 13).
STATEMENT OF FACTS
Wells Fargo extended a loan to plaintiffs in the amount of
$89, 000, in which, to secure repayment of the loan,
plaintiffs executed and delivered to Wells Fargo a mortgage
that granted a lien and security interest in certain real
property owned by plaintiffs at 58 Lillian Lane, Bangor,
Northampton County, Pennsylvania 18013. (Def.['s] Mot.
missed their regular payments for April, June, and July of
2009 and subsequently fell into arrears on the mortgage loan.
(FAC, ¶ 6.) At the time of these missed payments, the
principal balance on plaintiffs' outstanding loan amount
was approximately $66, 000. (Id. at ¶ 7.) In or
about August 2009, plaintiffs entered a twelve (12) month
“Special Forbearance” plan with Wells Fargo.
(Id. at ¶ 8.) Plaintiffs completed the special
forbearance plan in September 2010 and resumed regular
monthly mortgage payments to Wells Fargo through December
2010. (Id. at ¶¶10-11.)
about December 2010, Wells Fargo sent plaintiffs an Act 91
foreclosure notice detailing the four (4) regularly monthly
payments plaintiffs missed between September and December
2010. (Id. at ¶ 12.) Wells Fargo sent
additional Act 91 notices to Plaintiffs in January and
February 2011, after having returned the previously made
payments by plaintiffs under the special forbearance plan.
(Id. at ¶¶ 13-21.) Following the Act 91
notices, Wells Fargo referred plaintiffs to its foreclosure
counsel, defendant Phelan. (Def.['s] Mot. Dismiss 3.) At
the time of the Act 91 notices, plaintiffs were no longer in
arrears. (FAC, ¶ 20.)
about October 2011, defendants brought a foreclosure action
against plaintiffs in the Northampton Court of Common Pleas.
(Id. at ¶ 23.) In December 2015, Wells Fargo
voluntarily withdrew its complaint and discontinued the
foreclosure action without prejudice. (Def.['s] Mot.
bring claims against both defendants for alleged violations
of Wrongful Use of Civil Proceedings (“Dragonetti
Act”) (Count I), Pa. Act 6 (Count II), Unfair Trade
Practices and Consumer Protection Law (Count III), Fair Debt
Collection Practices Act (Count IV), and Loss of Consortium
STANDARD OF REVIEW
survive a motion to dismiss, a complaint 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. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
satisfies the plausibility standard when the facts alleged
“allow the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Burtch v. Millberg Factors, Inc., 662 F.3d
212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678).
While the plausibility standard is not “akin to a
‘probability requirement, '” there
nevertheless must be more than a “sheer possibility
that a defendant has acted unlawfully.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 556). “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).
Court of Appeals requires us to apply a three-step analysis
under a 12(b)(6) motion: (1) “it must ‘tak[e]
note of the elements [the] plaintiff must plead to state a
claim;'” (2) “it should identify allegations
that, ‘because they are no more than conclusions, are
not entitled to the assumption of truth;'” and, (3)
“[w]hen there are well-pleaded factual allegations,
[the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for
relief.” Connelly v. Lane Construction Corp., 809 F.3d
780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675,
679); see also Burtch, 662 F.3d at 221; Malleus v. George,
641 F.3d 560, 563 (3d. Cir. 2011); Santiago v. Warminster
Township, 629 F.3d 121, 130 (3d. Cir. 2010).
Wells Fargo and Phelan both move to dismiss the complaint in
its entirety, with each addressing separate claims in their
respective motions. For the reasons that follow, I will deny
defendants' motions, except as to the Dragonetti claim
(Count I) against defendants.
MOTION TO DISMISS OF DEFENDANT WELLS FARGO
Wells Fargo sets forth numerous arguments in support of its
motion to dismiss Count I (Dragonetti Act), Count II (Pa. Act
6), Count III (UTPCPL), and Count V (Loss of Consortium). As
will be discussed below, I will deny Wells ...