United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge
before the Court is the April 7, 2017, Motion to Dismiss
(Docket No. 18) filed by Wells Fargo Home
Mortgage ("Defendant") pursuant to
Federal Rule of Civil Procedure 12(b)(6). Defendant seeks
dismissal of all claims alleged at Counts I and II of
Plaintiff Rosanne Russick's March 27, 2017, Amended
Complaint. (Docket No. 17). Plaintiff alleges therein that
Defendant violated the Equal Credit Opportunity Act, 15
U.S.C. § 1691, et seq. ("ECOA"), and
the Fair Housing Act, 42 U.S.C. § 3601, et seq.
("FHA"), as a result of age, gender, marital
status, and disability-based discrimination, when it failed
to approve a mortgage assignment. This Court exercises
subject-matter jurisdiction pursuant to 28 U.S.C. § 1331
(federal question). For the reasons that follow,
Defendant's Motion to Dismiss will be GRANTED.
Factual & Procedural Background
December 2003, Ricky Gay ("Ricky") and his sister,
Joanna Gay ("Joanna"), purchased a residence
("Subject Property") in New Castle, Pennsylvania.
(Docket No. 17 ¶10). They secured a mortgage on the
Subject Property for $38, 083.00 from FirstMerit Mortgage
Corporation ("FirstMerit"). (Id.
¶¶ 11 - 12). Plaintiff thereafter came to live with
Ricky and Joanna in the Subject Property. (Id.
¶ 13 - 14).
time, Plaintiff was 60 years of age and was the primary
caretaker for Ricky. (Id. ¶¶ 1, 3). Ricky
was disabled at birth, suffering cognitive defects and a low
IQ. (Id.¶4). In spite of his impairments, Ricky
managed to work at a neighborhood grocery store as a shelf
packer for over ten (10) years. (Id.). Plaintiff,
Ricky, and Joanna all contributed to payment of the mortgage.
(Id. ¶ 14). Eventually, the mortgage was
assigned by FirstMerit to Defendant. (Id. ¶
April 30, 2016, Joanna married and moved from the Subject
Property to live with her husband. (Id. ¶¶
16 - 17). However, when Joanna and her husband attempted to
buy a new home, Joanna could not obtain a mortgage with her
husband because she was still a signatory on the mortgage of
the Subject Property. (Id. ¶ 19). Thus, Joanna
sought to deed her interest in the Subject Property to
Plaintiff and Ricky, and assign her obligations under the
mortgage to Plaintiff. (Id. ¶ 20). Plaintiff
was amenable to this arrangement in order to ensure that
Ricky would have a home in the future. (Id. ¶
and Ricky applied to Defendant for an assumption agreement.
(Id. ¶ 21). They were subsequently informed
that Plaintiff would need a co-signor with assets and a high
credit rating to assume the mortgage, despite the mortgage
being current and over ten (10) years old. (Id.
¶ 23). Richard J. Orloski ("Richard"),
Plaintiffs 69-year-old cousin, agreed to co-sign.
(Id. ¶¶ 24 - 25). Richard's credit
score was in the high 800's, and he had both earned and
non-earned income far above the debt secured by the mortgage.
An attorney, Richard also owned three properties free and
clear of any liens or encumbrances: his law office; his
residence; and one rental property. (Id.
¶¶ 27 - 28). During discussions about the
assignment, representatives of Defendant indicated that
Richard was an ideal co-signor, and even suggested that he
buy the mortgage from Defendant. (Id. ¶¶
26, 29). Ultimately, Plaintiff was informed that "if the
financial information concerning Richard J. Orlaski was true,
the assumption would be approved." (Id. ¶
Defendant changed its position not long after Plaintiff
secured Richard as a co-signor, and indicated that Plaintiff
would also personally need to meet the company's
financial strength requirements, irrespective of the
co-signor's finances and contrary to what she was
previously led to believe. (Id. ¶ 33 - 37).
Plaintiff could not, alone, meet the requirements.
(Id. ¶ 23). Ultimately, the assignment was
never approved, and due to financial losses as well as issues
that consequently arose within the family, Plaintiff and
Ricky lost the Subject Property. (M¶40).
August 25, 2016, Plaintiff filed a Complaint against
Defendant in the Court of Common Pleas of Lawrence County,
Pennsylvania, claiming discrimination under the provisions of
the ECOA and FHA on account of Plaintiffs and Richard's
ages. (Docket No. 1-3). Defendant removed the action to the
United States District Court on February 2, 2017. (Docket No.
1). Plaintiff filed an Amended Complaint (Docket No.
on March 27, 2017, claiming that Defendant violated the ECOA
and FHA as a result of age, gender, marital status, and
disability-based discrimination when it failed to approve
assignment of the mortgage on the Subject Property. Defendant
filed its Motion to Dismiss and Brief in support (Docket Nos.
18 -19) on April 7, 2017. Plaintiffs Response (Docket No. 20)
was filed on April 21, 2017. A Reply (Docket No. 22) was
filed May 3, 2017. Following hearing and oral argument on
said Motion on May 15, 2017 (Docket Nos. 30 and 31), the
matter is now ripe for disposition.
Standard of Review
Rule of Civil Procedure 8(a)(2) requires that a complaint
contain a short and plain statement of a claim, and show that
the pleader is entitled to relief. Dismissal of a complaint
or portion of a complaint is warranted under Federal Rule of
Civil Procedure 12(b)(6) when a claimant fails to
sufficiently state a claim upon which relief can be granted.
Avoiding dismissal under Rule 12(b)(6) requires a pleading
party's complaint to provide "enough factual
matter" to allow the case to move beyond the pleading
stage of litigation; the pleader must '"nudge his or
her claims across the line from conceivable to
plausible.'" Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 - 35 (3d Cir. 2008)
(quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544,
assessing the merits of a claim subject to a motion to
dismiss, a court must engage in a two-part analysis.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d
Cir. 2009). First, factual and legal elements of a claim must
be distinguished. Id. Second, it must be determined
whether the facts as alleged support a "plausible claim
for relief." Id. In making the latter
determination, the court must be mindful that the matter
pleaded need not include "detailed factual allegations,
" Phillips, 515 F.3d at 231 (quoting
Twombly, 550 U.S. at 555), and the court must
construe all alleged facts, and draw all inferences gleaned
therefrom, in the light most favorable to the non-moving
party. Id. at 228 (citing Worldcom, Inc. v.
Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)).
Moreover, a pleading party need only "put forth
allegations that 'raise a reasonable expectation that
discovery will reveal evidence of the necessary
element[s].'" Fowler, 578 F.3d at 213
(quoting Graff v. Subbiah Cardiology Assoc, Ltd.,
2008 WL 2312671 (W.D. Pa. June 4, 2008)). A well-pleaded
complaint, even when "it strikes a savvy judge that
actual proof of... facts is improbable, " will not be
dismissed as long as the pleader demonstrates that his or her
claim is plausible. Phillips, 515 F.3d at 234
(quoting Twombly, 550 U.S. at 555 -56).
the facts provided do need to raise the expectation of relief
above a purely speculative level, and must include more than
"labels and conclusions, and a formulaic recitation of
the elements of a cause of action." Phillips,
515 F.3d at 231 - 32 (quoting Twombly, 550 U.S. at
554 - 56). Rule 8(a)(2) "requires a 'showing'
rather than a blanket assertion of an entitlement to
relief." Id. at 232. "[T]hreadbare
recitals of the elements of a cause of action, supported by