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Odell v. CIT Bank

United States District Court, E.D. Pennsylvania

August 24, 2017



          Savage, J.

         This dispute arises out of a state-court foreclosure action brought by CIT Bank, which holds a mortgage on real property in Newtown Square, Pennsylvania. Plaintiff Drema Odell resides in the property, which was part of the estate of the late Edward W. Weingartner, Jr. Although she is the executrix of the estate, Odell brings this action in her own capacity, not as the personal representative of the estate. She sues CIT Bank, N.A., which holds the mortgage on the property, and Safeguard Properties, the company CIT Bank hired to secure the property during the foreclosure process.

         Odell claims the defendants broke into her home, stole her personal belongings, and engaged in deceptive business practices, causing her emotional distress. In her pro se complaint, she brings claims for conversion, trespass, negligence, negligent infliction of emotional distress, violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL), [1] punitive damages, and quiet title.

         The defendants have filed motions to dismiss. CIT Bank argues that Odell has not stated a cognizable claim against it. Safeguard Properties moves to dismiss the emotional distress, UTPCPL, and punitive damages claims against it.

         Because Odell does not state claims for negligent infliction of emotional distress, violations of the UTPCPL, or punitive damages against Safeguard Properties, we shall grant its motion to dismiss those claims only. Against CIT Bank, Odell has not stated claims for conversion, negligent infliction of emotional distress, UTPCPL, punitive damages, and quiet title. She does state claims for trespass and negligence. Therefore, we shall grant CIT Bank's motion in part and deny it in part.


         On November 2, 2007, Edward W. Weingartner, Jr., granted a reverse mortgage for property located at 1801 Whispering Brooke Drive, Newtown Square, Pennsylvania to Financial Freedom Senior Funding Corporation.[3] On May 5, 2009, the mortgage was assigned to Mortgage Electronic Registration Systems, Inc. (MERS).[4] In February 2012, two months after Weingartner's death, MERS assigned the mortgage to One West Bank, now CIT Bank, N.A.[5]

         The same day Weingartner took out the mortgage, he deeded the property to Florida Real Estate, LLC.[6] According to CIT Bank, Odell is the sole and managing member of Florida Real Estate.[7]

         Odell was named "executrix and sole beneficiary and heir of Mr. Weingartner's estate."[8] According to CIT Bank, she has been residing at the property rent-free "since at least the time of Weingartner's death."[9]

         On March 26, 2012, One West Bank filed a foreclosure action against Florida Real Estate in the Chester County Court of Common Pleas.[10] On May 19, 2013, it amended the complaint to add Odell as a defendant in her capacity as executrix of Weingartner's estate.[11] Odell claims that One West Bank agreed to a short sale in July 2014 and February 2015.[12] Apparently, there was no sale.

         On March 25, 2015, Odell discovered that the front door lock of the property had been changed.[13] The back door window was broken and the master bedroom had been "trashed."[14] The water had stopped running.[15] Many of her belongings, including jewelry and designer handbags, were missing.[16] Odell called two locksmiths and the police.[17]

         That same day, Odell's attorney sent a letter to One West Bank inquiring if it was aware of the incident.[18] One West Bank did not respond.[19] One week later, Odell found a snake in her closet.[20]

         On April 27, 2015, Odell walked downstairs after returning home from work and found a contractor in the house.[21] The contractor informed her that "they were there on behalf of the bank that owned the house to finish winterizing the house."[22] Odell asked him to step outside the house, where she discovered a second contractor.[23] The contractors showed her a work order and later emailed it to her.[24] Defendant Safeguard Properties was hired by "NSTAR" to winterize the property and change the locks.[25]

         On February 5, 2016, Safeguard placed a white sticker on the front door of the property. The sticker provided a phone number to call if the property was not vacant.[26]When Odell called Safeguard, a customer service agent informed her that "the Bank named Nationstar" had hired Safeguard on behalf of One West Bank.[27] She now alleges that Safeguard contractors, agents of One West Bank, were responsible for the earlier entry.

         Meanwhile, in April 2015, One West Bank had filed a quiet title action against Odell as executrix of Weingartner's estate and against Florida Real Estate in the Chester County Court of Common Pleas.[28] On July 7, 2015, the court consolidated the quiet title and the foreclosure actions.[29]

         On the morning of February 10, 2016, on her way to the Chester County courthouse to attend a pretrial conference, Odell's security company called her, reporting that "the security had been breached."[30] Odell claims that "[s]omeone with the bank tried to break in at that exact moment."[31] There is no allegation that there had been an unauthorized entry into the property or who actually breached security.

         On March 2, 2016, Odell filed an action in this district court against One West Bank, N.A. and Safeguard Properties, as well as four other defendants: Financial Freedom Senior Funding Corporation, Nationstar Mortgage, MERS, and John Doe.[32]On June 30, 2016, the complaint was dismissed for lack of diversity jurisdiction.[33]

         Subsequent to filing the March 2, 2016 complaint, Odell filed two bankruptcy actions. The first case, a Chapter 13 bankruptcy filed by Odell as the executrix of Weingartner's estate on March 10, 2016, was dismissed May 24, 2016.[34] The second case, a Chapter 11 bankruptcy filed by Florida Real Estate on April 27, 2016, was dismissed April 12, 2017.[35]

         Twelve days later, on April 24, 2017, Odell filed this action against CIT Bank and Safeguard Properties. In addition to alleging the same causes of action as her March 2, 2016 complaint, she asserts a quiet title action against CIT Bank.

         On June 26, 2017, the Chester County Court of Common Pleas entered judgment in favor of CIT Bank on its quiet title claims against Florida Real Estate and Odell in her capacity as executrix of Weingartner's estate.[36] The parties entered into a stipulation in which they agreed to withdraw all claims and defenses regarding the legal description of the property or the validity of the mortgage.[37] CIT Bank also agreed to pay Odell $5, 000.[38] On July 20, 2017, pursuant to their agreement, the parties filed a praecipe for entry of judgment and assessment of damages against Odell as executrix of Weingartner's estate and Florida Real Estate in the amount of $950, 739.45 in exchange for CIT Bank forbearing and refraining from any legal action against the property for sixty days and not causing any sheriff's sale until February 14, 2018.[39]

         Standard of Review

         A Rule 12(b)(6) motion tests the sufficiency of the allegations contained in the complaint. In order to survive a Rule 12(b)(6) motion, "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 is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

         In considering a motion to dismiss under Rule 12(b)(6), we first separate the factual and legal elements of a claim, accepting the well-pleaded facts as true and disregarding legal conclusions. Then, we determine whether the facts alleged, if proven, show that the plaintiff has a plausible claim for relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

         All well-pleaded allegations of the complaint must be accepted as true and interpreted in the light most favorable to the plaintiff and all inferences must be drawn in the plaintiffs favor. See McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (internal quotation marks omitted). To survive a motion to dismiss, a plaintiff must allege facts that "raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact)." Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555).

         A conclusory recitation of the elements of a cause of action is not sufficient. Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The plaintiff must allege facts necessary to make out each element. Id. (quoting Twombly, 550 U.S. at 563 n.8). In other words, the complaint must contain facts which, if proven later, support a conclusion that a cause of action can be established.

         Additionally, the pro se plaintiffs pleadings are considered deferentially, affording her the benefit of the doubt where one exists. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (citing Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011)). With these standards in mind, we shall accept as true the facts as they appear in Odell's complaint and draw all possible inferences from these facts in her favor.


         Statute of Limitations

         Actions for conversion, trespass, negligence resulting in injury to property, and negligent infliction of emotional distress must be filed within two years of the accrual of the cause of action. 42 Pa. Cons. Stat. § 5524.[40] Odell filed this action on April 24, 2017. Thus, Odell's tort claims that accrued before April 24, 2015 are barred by the statute of limitations.

         Odell bases her claims for trespass and negligent injury to property on three separate occurrences. First, on March 25, 2015, Odell returned home to find her locks changed, her back window broken, her water turned off, and her closet open with items missing, including jewelry and designer handbags.[41] One week later, she discovered a snake in her bedroom, which she attributed to the incident the previous week.[42]Second, on April 27, 2015, Odell discovered two men inside the house who "said they were there on behalf of the bank that owned the house to finish winterizing the house" and provided her with a Safeguard work order.[43] Third, on February 10, 2016, "the bank tried to break in" when she was en route to court in her Chester County case.[44]

         The April 27, 2015 and February 10, 2016 acts fall within the limitations period. The March 25, 2015 events do not. Therefore, unless an exception applies, her claims for conversion and negligent infliction of emotional distress arising from the March 25, 2015 occurrences are barred by the statute of limitations.

         Pennsylvania Discovery Rule

         The statute of limitations does not start running until the plaintiff knows or could have known that she had been injured and the defendant caused the injury. Morgan v. Petroleum Prods. Equip. Co., 92 A.3d 823, 828 (Pa. Super. 2014). The plaintiff has an obligation to exercise reasonable diligence to inform herself of the facts and circumstances giving rise to her cause of action and to initiate suit within the limitations period. Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000) (citing Hayward v. Med. Ctr. of Beaver Cty., 608 A.2d 1040, 1042 (Pa. 1992)).

         The application of the discovery rule is generally a question of fact. Id. (quoting White v. Owens-Corning Fiberglas Corp., 668 A.2d 136, 144 (Pa. Super. 1995)). However, where the facts are clear and reasonable minds would not differ, the commencement of the limitations period may be decided as a matter of law. Id. (citing Hayward, 608 A.2d at 1043).

         Odell knew that she had been injured and suspected CIT Bank on March 25, 2015. That same day, her lawyer sent a letter to CIT Bank "inquiring if they were aware of the break in." If she did not know of CIT Bank's involvement at that time, she had an obligation to exercise due diligence to discover who was responsible. About a month later, she learned the identity of the Safeguard Properties subcontractor. In February 2016, she knew that Safeguard was there at the request of One West Bank, CIT Bank's predecessor. Therefore, Odell cannot rely on the discovery rule to toll the limitations period for the March 25, 2015 trespass.

         Continuing Violations

         Odell cannot show that the April 27, 2015 and February 10, 2016 events are continuing violations of the March 25, 2015 events. The continuing violations doctrine provides that "when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period." Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)). The doctrine applies when: (1) the violations are of the same type and are connected; (2) the acts are recurring; and (3) the initial act did not have the degree of permanence that would have alerted the plaintiff that she had a duty to assert her rights then. Id. (citing West v. Phila. Elec. Co., 45 F.3d 744, 755 n.9 (3d Cir. 1995)).

         The incidents of April 27, 2015 and February 10, 2016 are not practices continuing from March 25, 2015. Each involves a discrete act. Hence, the continuing violations doctrine does not apply.

         In sum, there is no exception to toll the statute of limitations for Odell's conversion and negligent infliction of emotional distress claims. Accordingly, we consider only the claims arising after April 24, 2015.


         Odell alleges the unlawful deprivation of her property in only one instance: the March 25, 2015 break-in. She alleges "jewelry bags had been emptied" and designer "handbags were missing."[45] The alleged conversion took place more than two years before Odell started this action. Therefore, because it is barred by the statute of limitations, Count I will be dismissed as to CIT Bank.


         Odell alleges two unauthorized entrances into the property within the limitations period. The first was on April 27, 2015, when two men from Safeguard were inside the house.[46] She contends that the defendants had "a duty to ensure that Safeguard and its subcontractors only entered vacant property or otherwise appropriate properties for maintenance, ensure that the subcontractors were not thieves to steal property and to otherwise refrain from disturbing the peace, peaceful use and enjoyment of the owners and occupants of the property."[47] She also alleged facts explaining how she learned that CIT Bank engaged Safeguard.[48]

         Odell has stated a claim for trespass against CIT Bank based on the April 27, 2015 allegations. The complaint alleges that Odell resides at the property, persons acting on behalf of CIT Bank entered the ...

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