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Ortiz v. Phelan Hallinan Diamond & Jones, LLP

United States District Court, E.D. Pennsylvania

May 11, 2017

EFRAIN ORTIZ, Plaintiff,


          Schmehl, J.

         Before the Court is the motion to dismiss of Defendants, Phlean Hallinan Diamond & Jones, LLP, f/k/a Phelan Hallihan, LLP, Matthew G. Brushwood, Esquire and Jonathan Lobb, Esq. (“Defendants”). Plaintiff, Efrain Ortiz, (“Plaintiff”) has failed to oppose the motion. Having read Defendants' briefing and due to in part to Plaintiff's failure to oppose Defendants' motion, I will grant Defendants' motion and dismiss Plaintiff's Complaint.

         I. BACKGROUND

         Plaintiff filed this action against the moving defendants on September 8, 2016, as well as against Federal National Mortgage Association and JPMorgan Chase, National Association Successor by Chase Home Finance. On that same day, Plaintiff also filed a Motion for Emergency Hearing, seeking to stop a sheriff's sale of his home that was scheduled for the next day. Despite issuance of summonses to him, Plaintiff has failed to effectuate proper service of the Complaint upon any of the defendants. For the reasons that follow, I will grant moving defendants' Motion to Dismiss. I will also dismiss Plaintiff's Complaint without prejudice as to the two remaining defendants due to Plaintiff's failure to prosecute.


         Plaintiff and his co-borrower, Janette Ortiz, executed a mortgage and Plaintiff executed a promissory note on November 21, 2007, on property located at 44 Winding Brook Drive, Sinking Spring, PA to Chase Bank USA, N.A., in the principal amount of $401, 729.00. The Mortgage provided that in the event of default, the “Lender” may declare the entire indebtedness secured by the Mortgage immediately due and payable and foreclose on the Mortgage.

         On May 3, 2014, Defendants filed a foreclosure complaint on behalf of Chase, and while the foreclosure was pending, the Mortgage was assigned to Fannie Mae. On March 24, 2015, the Honorable Linda K.M. Ludgate entered an in rem judgment in favor of Fannie Mae and against Plaintiff and Janette Ortiz for $719, 773.97, plus interest from December 17, 2014. On May 21, 2015, Plaintiff filed an untimely appeal, which was dismissed by the Superior Court on July 17, 2015, for failure to comply with Pa.R.A.P. 3517. The Property was sold at the September 9, 2016, Sheriff's Sale by the Berks County Sheriff's Office to Fannie Mae.


         “To 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).

         The 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).

         Further, Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) therefore challenges the power of a federal court to hear a claim or case. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). In the face of a 12(b)(1) motion, the plaintiff has the burden to “convince the court it has jurisdiction.” Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir.2000); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991) (“When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.”).


         Plaintiff's Complaint states in the caption that it is for violations of the Fair Debt Collections Practices Act (“FDCPA”), then the body of the Complaint purports to set forth claims for a forged and fraudulent promissory note, mortgage note and notary page, assignment of a mortgage that was forged and fraudulently created and breach of contract. Defendants' motion moves to dismiss the complaint because the FDCPA claim is time-barred and because Plaintiff's action is barred by the Rooker-Feldman doctrine. For the reasons that follow, I will dismiss Plaintiff's Complaint with prejudice as to moving defendants due to Plaintiff's failure to respond to Defendants' motion to dismiss, because the FDCPA claims are time-barred, and because the Complaint is barred by the Rooker-Feldman doctrine. I will also dismiss Plaintiff's Complaint as to the remaining defendants without prejudice due to Plaintiff's failure to serve these defendants with the complaint and summonses.

         Plaintiff has failed to respond to the motion to dismiss filed by defendants. Failure to make a timely response allows the court to treat a motion as uncontested. Move Organization v. City of Philadelphia, 89 F.R.D. 521, 523 (E.D. Pa. 1981). Plaintiff's response was due in November of ...

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