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Blank v. Optimum Financial Services, LLC

United States District Court, E.D. Pennsylvania

April 27, 2017

GARY BLANK Plaintiff, pro se




         Before this Court are motions to dismiss, one filed by Defendant Bank of America, N.A. ("Defendant BANA"), on September 29, 2016, [ECF 3], and another by Defendant Optimum Financial Services, LLC ("Defendant Optimum"), filed on November 18, 2016, [ECF 5], (collectively, "Defendants"), pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1), 12(b)(2), and 12(b)(6). Plaintiff Gary Blank ("Plaintiff), proceeding pro se, has not filed a response to either motion though the time period for doing so has long passed. The issues in the motions to dismiss have been briefed and are ripe for disposition. For the reasons stated herein, the motions to dismiss are granted.


         On August 17, 2016, Plaintiff filed a state court action against Defendants asserting claims of fraud in the concealment, breach of contract, breach of fiduciary duty, slander of title, wrongful foreclosure, and requesting declaratory relief. Each claim is purportedly premised on an alleged wrongful foreclosure and a subsequent invalid sheriff sale of property located at 3147 Pasqualone Boulevard, Bensalem, Pennsylvania.[1] [ECF 1-1]. Following the removal of the state court action to federal court, Defendants filed the underlying motions to dismiss.

         For the purpose of the motions to dismiss, this Court must accept, as true, all relevant and pertinent factual allegations in Plaintiffs complaint. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). These factual allegations are summarized as follows:[2]

On November 2, 2006, Plaintiff executed a promissory note in favor of Optimum Financial Services, LLC, d/b/a Homestar Direct in the amount of $185, 000. (Compl. at ¶ 7). The note was secured by a mortgage ("the Mortgage") on 3147 Pasqualone Boulevard, Bensalem, Pennsylvania ("the Property"). (Id. at ¶¶ 1, 8). The Mortgage identified Plaintiff as the borrower, Opteum Financial Services, LLC d/b/a Homestar Direct, a Pennsylvania corporation, as the lender ("Opteum"), [3] and Mortgage Electronic Registration System ("MERS") as mortgagee acting solely as a nominee for Opteum and Opteum's successors and assigns. (See Def. BANA's Mot. to Dismiss Ex. A at 1). The Mortgage was subsequently assigned to First State Bank of East Detroit ("First State") ("the Assignment"), and the Assignment was recorded on September 4, 2013. (Compl. at ¶ 12).
Plaintiff defaulted on the note and, on May 22, 2014, First State filed a foreclosure action against him in the Bucks County Court of Common Pleas. The foreclosure action was captioned First State Bank of East Detroit v. Gary Blank, Bucks County Court of Common Pleas, Pennsylvania, Case No. 2014-03600.[4] On August 22, 2014, a default judgment was entered against Plaintiff and a sheriffs sale was ordered.[5] Defendant BANA purchased the Property at a sheriffs sale, and recorded a deed to the Property on June 10, 2015.[6]


         As noted, Defendants filed motions to dismiss pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6). The standard of each Rule will be discussed, infra.[7]

         Rule 12(b)(1)

         A motion to dismiss filed under Rule 12(b)(1) challenges the existence of subject-matter jurisdiction. As the party invoking this Court's jurisdiction, Plaintiff bears the burden of proving that the jurisdictional requirements are met. Dev. Fin. Corp. v. Alpha Hous. & Health Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995); Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). "[W]hen there is a fact question about whether a court has jurisdiction, the trial court may examine facts outside the pleadings . . . '[b]ecause at issue in a factual 12(b)(1) motion is the trial court's jurisdiction - its very power to hear the case.'" Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Therefore, this Court is free to consider evidence outside the pleadings, including publicly available records, to resolve factual issues bearing on the court's jurisdiction. See Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997); Jiricko v. Bennett, Bricklin & Saltzburg, LLP, 321 F.Supp.2d 636, 640 (E.D. Pa. 2004).

         Rule 12(b)(6)

         Finally, when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The court must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief'" Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint must do more than merely allege the plaintiffs entitlement to relief; it must "show such an entitlement with its facts." Id. (internal citations and quotations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief'" Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)) (alterations in original). "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." Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. To survive a motion to dismiss under Rule 12(b)(6), "a plaintiff must 'nudge [his] claims across the line from conceivable to plausible.'" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570). Even though pleadings and other submissions by pro se litigants are subject to liberal construction and the courts are required to accept the truth of Plaintiffs well-pleaded allegations while drawing reasonable inferences in Plaintiffs favor, Wallace v. Fegan, 455 F.App'x 137, 139 (3d Cir. 2011) (citing Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam)), a pro se complaint must still "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).


         In the complaint, Plaintiff contends that the foreclosure was wrongful because Defendant BANA purportedly had no rights under the loan agreement and corresponding note and asserts four causes of action against Defendant BANA for: (1) breach of fiduciary duty; (2) slander of title; (3) wrongful foreclosure; and (4) declaratory relief. Defendant BANA moves to dismiss these causes of action pursuant to Rule 12(b)(6), contending that each fails to state a claim upon which relief can be granted. Likewise, Defendant Optimum moves to dismiss the allegations in the complaint against it pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6), on the ground that Plaintiff has sued the wrong party and has not amended the complaint to add the real party in interest, Opteum. This Court will address each motion in turn.

         A. BANA's ...

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