United States District Court, W.D. Pennsylvania
JACQUELINE PFENDLER on behalf of herself and all others similarly situated, Plaintiff,
PNC BANK, NATIONAL ASSOCIATION, Defendant.
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION TO
J. SCHWAB UNITED STATES DISTRICT JUDGE
Jacqueline Pfendler, seeks to represent a class of
individuals who were assessed property inspection fees by
Defendant, PNC Bank, National Association,
(“PNC”), alleging that PNC uses an automated
mortgage loan management system which s unnecessary,
unreasonable, and inappropriate property inspections whenever
a borrower falls sufficiently behind on mortgage payments,
and continues to order the inspections at regular intervals
until the borrower becomes current. Plaintiff alleges that
this practice is a breach of contract, violates the
Pennsylvania's Unfair Trade Practices and Consumer
Protection Law, 73 P.S. §§ 201-1, et seq.,
(“PUTPCPL”), violates the North Carolina Unfair
and Deceptive Trace Practice Act, N.C. Gen. Stat. Ann. §
75-1.1, et seq., and results in unjust enrichment to PNC.
Complaint, Doc. No. 1.
filed a Motion to Dismiss the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). Doc. No. 17. The Court has
reviewed the Complaint, doc. no. 1; Defendant's Motion,
doc. no. 17; Memorandum in Support, doc. no. 18;
Plaintiff's Memorandum in Opposition, doc. no. 25; and
Defendant's Reply brief, doc. no. 28. For the reasons
that follow, the Court will GRANT Defendant's Motion to
Dismiss all claims and mark this case CLOSED.
Federal Rule of Civil Procedure 12(b)(6), a Complaint must be
dismissed for “failure to state a claim upon which
relief can be granted.” Detailed factual pleading is
not required - Rule 8(a)(2) calls for a “short and
plain statement of the claim showing that the pleader is
entitled to relief” - but a Complaint must set forth
sufficient factual allegations that, taken as true, set forth
a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The plausibility standard does not
require a showing of probability that a claim has merit,
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007), but it does require that a pleading show “more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678. Determining the
plausibility of an alleged claim is “a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at
is plausible when the plaintiff alleges facts that allow the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Twombly, 550 U.S. at 555.
The United States Court of Appeals for the Third Circuit
instructs that a District Court must undertake three steps to
determine whether a complaint sets forth a plausible claim
First, the court must take note of the elements a plaintiff
must plead to state a claim. Second, the court should
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.
Finally, where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209,
212 (3d Cir. 2013) (citation omitted).
third step requires the Court to consider the nature of the
claims presented and to determine whether the facts pled to
substantiate the claims are sufficient to show a
“plausible claim for relief.” Covington v.
Int'l Ass'n of Approved Basketball Officials,
710 F.3d 114, 118 (3d Cir. 2013); see also Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
reviewing a motion to dismiss for failure to state a claim,
the Court must view all of the allegations and facts in the
complaint in the light most favorable to the plaintiff, and
must grant the plaintiff the benefit of all reasonable
inferences that can be derived therefrom. Kanter v.
Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting
Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
However, the Court need not accept inferences or conclusory
allegations that are unsupported by the facts set forth in
the complaint. See Reuben v. U.S. Airways, Inc., 500
Fed.Appx. 103, 104 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at
678); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009). “While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 664.
Court may not dismiss a complaint merely because it appears
unlikely or improbable that Plaintiff can prove the facts
alleged or will ultimately prevail on the merits. Twombly,
550 U.S. at 563 n.8. A motion to dismiss should be granted if
a party fails to allege facts, which could, if established at
trial, entitle him/her to relief. Twombly, 550 U.S. at 563
Summary of the Complaint
alleges that PNC uses an automated mortgage loan management
system to engage in a deceptive and unfair scheme to collect
fees for unnecessary, unreasonable, and inappropriate
property inspections, to maximize fees assessed on
borrowers' accounts when they are in default of their
mortgage agreements. Doc. No. 1. Plaintiff alleges that PNC,
by using the automated system, automatically orders property
inspections for every mortgage loan account that is in
default for a specified period of time, and continues to
automatically order inspections, so long as the borrower
remains in default.
on December 9, 2011, Plaintiff purchased a home in Littleton,
North Carolina, and executed a deed of trust (“Deed of
Trust”) mortgaging the property. The Deed of Trust
provides that, in the event of a default by Plaintiff,
“Lender may do and pay for whatever is reasonable or
appropriate to protect Lender's interest in the Property
and rights under this Security Instrument, including
protecting and/or assessing the value of the ...