United States District Court, M.D. Pennsylvania
U.S. BANK NATIONAL ASSOCIATION, Plaintiff
BRIAN A. GERBER and TRACY L. GERBER, Defendants
CHRISTOPHER C. CONNER, CHIEF JUDGE UNITED STATES DISTRICT
U.S. Bank National Association (“U.S. Bank”)
filed a complaint in mortgage foreclosure against defendants
Brian A. Gerber and Tracy L. Gerber (“the
Gerbers”). In addition to answering the complaint and
raising affirmative defenses, the Gerbers assert two
counterclaims. U.S. Bank moves to dismiss both counterclaims
under Federal Rule of Civil Procedure 12(b)(6) and also moves
to strike many of the Gerbers' affirmative defenses.
(Doc. 10). The court will grant U.S. Bank's motion to
dismiss and will grant in part and deny in part the motion to
Factual Background & Procedural History
2007, the Gerbers borrowed $247, 500 from
HOMELOANADVISORS.COM and executed a promissory note in
consideration for the loan. (Doc. 1 ¶ 8; Doc. 1-2, Ex.
A; Doc. 8 at 2 ¶ 8, 19 ¶ 38). The loan was a
refinance transaction, not a purchase-money loan. (Doc. 8 at
19 ¶ 38). The Gerbers secured the note with a mortgage,
which offers as collateral real property located in
Dillsburg, Pennsylvania. (Doc. 1 ¶¶ 8, 12, 17; Doc.
8 at 2-3 ¶¶ 8, 12, 17). The Gerbers are the record
owners of the mortgaged property, and the mortgage was duly
recorded. (Doc. 1 ¶¶ 12, 18; Doc. 1-2, Ex. B; Doc.
8 at 3 ¶¶ 12 & 18, 19 ¶ 38).
to U.S. Bank, HOMELOANADVISORS.COM indorsed the note to
Encore Credit, and Encore Credit indorsed the note in
blank. (Doc. 1 ¶¶ 9-10). U.S. Bank
claims that it currently possesses the original note.
(Id. ¶ 11). U.S. Bank further asserts that
HOMELOANADVISORS.COM assigned the mortgage to Mortgage
Electronic Registration Systems, Inc. (“MERS”),
and MERS assigned the mortgage to Bank of America National
Association (“Bank of America”) as trustee for
certain mortgage-backed securities. (Id. ¶ 14).
Around the time of the assignment from MERS to Bank of
America, the mortgage was
“securitized.” (Doc. 8 at 11 ¶ 8). When U.S. Bank
succeeded Bank of America as trustee for the mortgage-backed
securities, Bank of America assigned the mortgage to U.S.
Bank. (Doc. 1 ¶¶ 15-16; Doc. 8 at 3 ¶ 16).
U.S. Bank avers that all of these mortgage assignments were
duly recorded. (Doc. 1 ¶¶ 13, 14, 16; Doc. 1-2, Ex.
C, D, E).
Bank alleges that beginning in March 2009 and continuing
thereafter, the Gerbers failed to make loan payments as
required under the note. (Doc. 1 ¶ 19). U.S. Bank avers
that it provided the Gerbers notice of default and notice of
its intention to foreclose on the mortgaged property.
(Id. ¶ 24; Doc. 1-2, Ex. G; Doc. 8 at 4 ¶
24). U.S. Bank filed the instant complaint in mortgage
foreclosure in August 2017. At that time, U.S. Bank claimed
the Gerbers owed approximately $456, 000 in outstanding
principal, interest, escrow deficit, and costs. (Doc. 1
Gerbers answered the complaint and raised 22 affirmative
defenses. The Gerbers also assert two declaratory judgment
counterclaims against U.S. Bank. U.S. Bank moves to dismiss
both counterclaims under Rule 12(b)(6) and to strike many of
the Gerbers' affirmative defenses under Rule 12(f). The
motion is fully briefed and ripe for disposition.
12(b)(6) of the Federal Rules of Civil Procedure provides for
the dismissal of complaints that fail to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). When
ruling on a motion to dismiss under Rule 12(b)(6), the court
must “accept all factual allegations as true, construe
the complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.”
Phillips v. County of Allegheny, 515 F.3d 224, 233
(3d Cir. 2008) (quoting Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition
to reviewing the facts contained in the complaint, the court
may also consider “exhibits attached to the complaint,
matters of public record, as well as undisputedly authentic
documents” attached to a defendant's motion to
dismiss if the plaintiff's claims are based upon these
documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d
Cir. 2010) (citing Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
notice and pleading rules require the complaint to provide
“the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). To test the sufficiency of the complaint, the
court conducts a three-step inquiry. See Santiago v.
Warminster Township, 629 F.3d 121, 130-31 (3d Cir.
2010). In the first step, “the court must ‘tak[e]
note of the elements a plaintiff must plead to state a
claim.'” Id. at 130 (alteration in
original) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
675 (2009)). Next, the factual and legal elements of a claim
must be separated; well-pleaded facts are accepted as true,
while mere legal conclusions may be disregarded. Id.
at 131-32; see Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009). Once the court isolates the
well-pleaded factual allegations, it must determine whether
they are sufficient to show a “plausible claim for
relief.” Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556); Twombly, 550
U.S. at 556. A claim is facially plausible when the plaintiff
pleads facts “that allow the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
Rule of Civil Procedure 8(c) classifies a statute of
limitations claim as an affirmative defense that must be pled
in an answer to the complaint. Fed.R.Civ.P. 8(c).
Nevertheless, the court may dismiss a complaint as
time-barred under Rule 12(b)(6) if “the time alleged in
the statement of a claim shows that the cause of action has
not been brought within the statute of limitations.”
Robinson v. Johnson, 313 F.3d 128, 135 (3d
Cir. 2002); see Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994). This
deficiency must be apparent on the face of the pleading.
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)
(citation omitted). The Third Circuit has indicated that the
meaning of “the face of the complaint, ” as it
relates to asserting affirmative defenses in a motion to
dismiss, is coextensive with the general Rule 12(b)(6)
limitations. Id.; see also Hoffman v. Nordic
Nats., Inc., 837 F.3d 272, 280 & n.52 (3d Cir. 2016)
(citations omitted) (discussing raising affirmative defense
of preclusion in Rule 12(b)(6) motion). Thus, the materials
properly considered include not only the complaint but also
matters of public record, exhibits attached to the complaint,
and undisputed materials embraced by the complaint but
provided by the defendant. Schmidt, 770 F.3d at 249;
Hoffman, 837 F.3d at 280 & n.52.
Bank attacks the sufficiency of the Gerbers'
counterclaims and moves to strike many of the Gerbers'
affirmative defenses. We begin by addressing the Rule
12(b)(6) motion to dismiss.
Motion to Dismiss Counterclaims
Gerbers' counterclaims seek relief under the Declaratory
Judgments Act, 28 U.S.C. §§ 2201-2202, which
authorizes federal courts to “declare the rights and
other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201(a). In other words,
declaratory judgment actions are intended to adjudicate
“rights and obligations prior to the enforcement of a
remedy.” Rarick v. Federated Serv. Ins. Co.,
852 F.3d 223, 227 (3d Cir. 2017) (citations omitted). The
Gerbers seek declaratory relief in two forms: first,
a declaration of unilateral contract modification and,
second, a declaration of rescission.
Counterclaim Count I - Declaratory Judgment, Unilateral