United States District Court, E.D. Pennsylvania
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.
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),  punitive damages, and quiet
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.
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.
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. On May 5, 2009, the mortgage
was assigned to Mortgage Electronic Registration Systems,
Inc. (MERS). In February 2012, two months after
Weingartner's death, MERS assigned the mortgage to One
West Bank, now CIT Bank, N.A.
same day Weingartner took out the mortgage, he deeded the
property to Florida Real Estate, LLC. According to CIT Bank, Odell
is the sole and managing member of Florida Real
was named "executrix and sole beneficiary and heir of
Mr. Weingartner's estate." According to CIT Bank, she
has been residing at the property rent-free "since at
least the time of Weingartner's
March 26, 2012, One West Bank filed a foreclosure action
against Florida Real Estate in the Chester County Court of
Common Pleas. On May 19, 2013, it amended the
complaint to add Odell as a defendant in her capacity as
executrix of Weingartner's estate. Odell claims
that One West Bank agreed to a short sale in July 2014 and
February 2015. Apparently, there was no sale.
March 25, 2015, Odell discovered that the front door lock of
the property had been changed. The back door window was
broken and the master bedroom had been
"trashed." The water had stopped
running. Many of her belongings, including
jewelry and designer handbags, were missing. Odell called
two locksmiths and the police.
same day, Odell's attorney sent a letter to One West Bank
inquiring if it was aware of the incident. One West Bank
did not respond. One week later, Odell found a snake in
April 27, 2015, Odell walked downstairs after returning home
from work and found a contractor in the house. The
contractor informed her that "they were there on behalf
of the bank that owned the house to finish winterizing the
house." Odell asked him to step outside the
house, where she discovered a second
contractor. The contractors showed her a work order
and later emailed it to her. Defendant Safeguard Properties
was hired by "NSTAR" to winterize the property and
change the locks.
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.When Odell
called Safeguard, a customer service agent informed her that
"the Bank named Nationstar" had hired Safeguard on
behalf of One West Bank. She now alleges that Safeguard
contractors, agents of One West Bank, were responsible for
the earlier entry.
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. On July 7, 2015, the court consolidated
the quiet title and the foreclosure actions.
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." Odell claims
that "[s]omeone with the bank tried to break in at that
exact moment." There is no allegation that there had
been an unauthorized entry into the property or who actually
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.On June 30, 2016, the complaint was
dismissed for lack of diversity jurisdiction.
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. The second
case, a Chapter 11 bankruptcy filed by Florida Real Estate on
April 27, 2016, was dismissed April 12, 2017.
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.
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. 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. CIT Bank also
agreed to pay Odell $5, 000. 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.
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.
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
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).
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.
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.
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. Odell filed
this action on April 24, 2017. Thus, Odell's tort claims
that accrued before April 24, 2015 are barred by the statute
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. One week later, she discovered a snake
in her bedroom, which she attributed to the incident the
previous week.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. Third, on February 10, 2016, "the
bank tried to break in" when she was en route to court
in her Chester County case.
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.
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.
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).
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
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)).
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
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.
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." 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.
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. 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." She also alleged facts explaining how
she learned that CIT Bank engaged Safeguard.
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 ...