# MO v. JPMORGAN CHASE BANK, N.A.

> District Court, D. New Jersey · February 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10272560

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10272560

## How later opinions describe it (automated extraction)

- noting that on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”
- stating that these three elements “are essential for the existence of a cause of action in negligence”
- noting that “damages are an essential element in pleading a RESPA claim” and requiring a “causal link” between alleged violation and damages

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SUNG H. MO,
Plaintiff,
Civ. No. 20-14387 (KM) (ESK)
v.
JPMORGAN CHASE BANK, N.A., OPINION
U.S.BANKCORP, TIAA BANK, and
WELLS FARGO BANK,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Plaintiff Sung Mo has a mortgage owned by U.S. Bank, serviced by TIAA
Bank, and “invested in” by Wells Fargo Bank (collectively, along with JPMorgan
Chase Bank, “Defendants”). After Defendants allegedly misled Plaintiff about
required mortgage payments, U.S. Bank brought a foreclosure action in New
Jersey court, resulting in summary judgment in May 2018 in its favor. In this
Court, Plaintiff asserts contract, consumer-protection, and other claims against
Defendants arising from their actions that purportedly led to his default.
Defendants move to dismiss, arguing that the Second Amended Complaint fails
to state a claim, see Fed. R. Civ. P. 12(b)(6). (DE 62, 63.)1 For the following
reasons, the motions to dismiss are GRANTED.

1 Certain citations to the record are abbreviated as follows:
“DE” refers to the docket entry numbers in this case
“2AC” refers to the Second Amended Complaint (DE 50)
“JPMorgan MTD” refers to JPMorgan Chase Bank’s Brief in Support of its
Motion to Dismiss (DE 62-1)
“Defs. MTD” refers to the Brief in Support of TIAA Bank, Wells Fargo Bank, and
U.S. Bank’s Motion to Dismiss (DE 63-1)
I. BACKGROUND
As outlined in my prior opinion dismissing his First Amended Complaint,
Plaintiff bought real property in Totowa, New Jersey (“the Totowa property”)
with the aid of a mortgage that he obtained from Bank of New York Mortgage
Company, LLC (“BNY”) in 2005. (2AC ¶¶ 2, 20-21.) BNY assigned the mortgage
in 2012 to an adjustable-rate mortgage trust over which U.S. Bank was
trustee.2 (Id. ¶¶ 3, 4; Defs. MTD at 2-3.) TIAA is the current mortgage servicer
while Wells Fargo “was the investor” in the mortgage as of 2018.3 (2AC ¶¶ 5, 6.)
Plaintiff claims that “[e]ach and every Defendant[]” participated in a
“deceitful scheme” to cause him to default on his mortgage (id. ¶ 19, 68, 73),
but alleges facts only as to the conduct of BNY,4 Wells Fargo, and U.S. Bank.
According to his Second Amended Complaint, Plaintiff executed a loan
modification agreement with BNY in November 2013. (Id. ¶ 22-23.) He noticed
in January 2014 that a mortgage payment “had not been processed from his
bank account,” so he contacted BNY, which “unilaterally” placed him into a
“verbal5 temporary repayment plan” that required him to make payments in
different amounts than those required under the 2013 loan modification
agreement. (Id. ¶¶ 24-26, 37, 41.) Plaintiff maintains that he complied with

2 This assignment erroneously named JPMorgan Chase Bank as the mortgage
servicer, an error that was corrected in 2016. (JPMorgan MTD at 3; Defs. MTD at 2-3.)
Accordingly, JPMorgan Chase Bank argues that it has been erroneously named in this
action, given that it has no actual interest in the mortgage loan at issue. (JPMorgan
MTD at 2-3.)
3 However, the Second Amended Complaint is less than clear as to the timeline or
varying roles of Defendants in Plaintiff’s mortgage loan, later stating that Wells Fargo
was also the mortgage’s owner as of 2018. (2AC ¶ 49).
4 Plaintiff states that, at the time Plaintiff obtained the mortgage, “BNY Mortgage
was owned by Everbank Financial Corporation, BNY's partner in the joint venture.
Everbank was TIAA's former banking division.” (2AC ¶ 5.) Thus, Plaintiff appears to
treat allegations against BNY as attributable to TIAA without further explanation. For
the purposes of this motion, I do not attempt to disentangle BNY and TIAA’s
relationship but note that Plaintiff’s pleading on this point is clearly wanting.
5 The sense seems to be that this was an oral arrangement, as opposed to a
written one. I will use Plaintiff’s terminology.
these requests, sending mortgage payments to BNY in February, March, and
April 2014 pursuant to this verbal repayment plan, and in May 2014 was
allegedly told by BNY that the verbal repayment plan was “complete.” (Id.
¶¶ 27-33.) Plaintiff claims that he made one further payment on the mortgage
in July 2014 at BNY’s instruction but was informed in September 2014 that he
had “failed the verbal repayment plan and didn’t need to send the mortgage
payment anymore.” (Id. ¶¶ 34-36.) Plaintiff now alleges that BNY intended to
cause Plaintiff’s eventual default on the mortgage by imposing the verbal
repayment plan on him, “deliberately delay[ing]” notices of late payment, and
giving “confusing and varying” instructions to him in the process. (Id. ¶¶ 37-
46.)
In March 2017, U.S. Bank commenced a foreclosure proceeding against
Plaintiff in New Jersey Superior Court—a suit which Plaintiff characterizes as
“invalid.”6 (Id. ¶ 47, 113.) Plaintiff applied for a loan modification in November
2017 and was denied by TIAA because Wells Fargo did not grant “an Investor
Approval.” (Id. ¶¶ 48-50.) Plaintiff further alleges that TIAA’s appraiser
intentionally prepared a false property appraisal report by “adopt[ing]
completely different properties as comparable sales” in order to deflate the
value of the Totowa property and “assure that Plaintiff would not qualify” for a
loan modification during his seven total attempts at obtaining one. (Id. ¶¶ 51-
62, 65.) Plaintiff claims that Wells Fargo also “knowingly and willfully”
participated in this scheme to prevent Plaintiff from receiving a loan
modification by denying his applications for one based on the “fraudulent”
appraisal report. (Id. ¶¶ 61-66.) Plaintiff asserts that “Wells Fargo is thus liable
for the actions of the appraiser.” (Id. ¶ 63.)
Further, Plaintiff alleges that Wells Fargo denied his loan modification
application in December 2017, and his subsequent appeal of that denial, based

6 Plaintiff filed a counterclaim in the state case alleging that BNY inflated the
value of the appraisal, affecting the terms of Plaintiff’s loan, in violation of the New
Jersey Consumer Fraud Act (“NJCFA”), N.J. Stat. Ann. § 56:8-1. (DE 63-6 at 4–6.) In
February 2018, the court dismissed the counterclaim with prejudice. (DE 63-4 at 2–3.)
on an incorrect calculation of the attorneys’ fees associated with foreclosure.
(Id. ¶¶ 75-83.) Plaintiff’s next three applications, submitted in March, April,
and July 2018, were denied because Wells Fargo allegedly relied on a
miscalculation of Plaintiff’s income and on the false appraisal report. (Id. ¶¶ 84-
91.) Plaintiff’s sixth and seventh loan modification applications were denied by
U.S. Bank in October 2018 and February 2019 for failure to submit requested
documentation—documentation which Plaintiff alleges was designed for a
mortgage refinancing rather than a loan modification.7 (Id. ¶¶ 92-96.) Thus
Plaintiff maintains that, in denying Plaintiff’s seven loan modification
applications, Wells Fargo and U.S. Bank “continually violated” federal
regulations governing loss mitigation procedures in foreclosure. (Id. ¶ 97 (citing
12 C.F.R. § 1024.41).)
Finally, Plaintiff alleges that U.S. Bank’s counsel in the state foreclosure
case intentionally failed to serve Plaintiff or other interested parties with the
foreclosure complaint, motion for summary judgment, and various other
motions and pleadings, rendering those documents invalid. (Id. ¶¶ 114-68.)
Moreover, Plaintiff alleges that counsel “repeatedly made false statements” to
the state court and others representing that proper service had been effected
on all interested parties. (Id. ¶¶ 118-19, 122-24, 133, 142-48, 151, 158, 167-
69.) As such, Plaintiff accuses U.S. Bank’s counsel of committing negligence,
“intentional fraud,” and violations of state consumer protection laws “in order
to further his own legal and financial gain,” (id. ¶¶ 128, 149, 152, 158-60, 164,
166, 169-74)—conduct that he claims is attributable to U.S. Bank, (id. ¶ 175.)
In May 2018, the state court granted summary judgment in favor of U.S.
Bank in the foreclosure case and referred the case to the Office of Foreclosure.

7 Plaintiff also alleges that the assignment of the mortgage to U.S. Bank, and
Wells Fargo before it, was unlawful and invalid because there was a “break in the
chain” of title after BNY assigned the mortgage to the trust and erroneously named
JPMorgan Chase Bank as servicer. (Id. ¶¶ 93, 98-106.) He argues that U.S. Bank
lacked standing to pursue the foreclosure action in state court and that the
certifications supporting the summary judgment against him in that case are “flat-out
lies.” (Id. ¶¶ 107-13.)
(DE 63-4 at 4-5.) Motion practice nevertheless continued, and the foreclosure
case remains pending. (See Defs. MTD at 1, 10 n.2.)
In October 2020, Mo filed this federal-court action. (DE 1.) In the
currently operative Second Amended Complaint, he asserts claims for (1)
breach of contract; (2) breach of contract for third party beneficiary; (3)
negligence; (4) violation of the Real Estate Settlement Procedures Act
(“RESPA”), as implemented by 12 C.F.R. § 1024.41; (5) violation of the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 to 1692p; (6)
violation of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 to 1616; (7)
violation of the NJCFA; N.J. Stat. Ann. § 56:8-1; (8) violation of the Unfair
Claims Settlement Practices Act (“UCSPA”), N.J. Stat. Ann. §§ 17:29B-1 to -19;
(9) violation of N.J. Ct. R. 4:4-3(a), governing the service of a summons and
complaint in New Jersey state court; (10) violation of the Real Estate
Appraisers Act, as implemented by N.J. Admin. Code § 13:40A-6.1; and (11)
initiating a “wrongful foreclosure action.” (2AC ¶¶ 176–347.) Defendants Wells
Fargo, U.S. Bank, and TIAA move to dismiss, arguing that Plaintiff has failed to
state a claim under Fed. R. Civ. Pro. 12(b)(6) and has failed to rectify the
deficiencies of his prior complaints. (Defs. MTD at 4-5.) JPMorgan Chase Bank
joins in their motion and moves to dismiss on the additional ground that it is
improperly named and was not at all involved in the mortgage loan at issue.
(JPMorgan MTD at 5-6.)
II. STANDARD OF REVIEW
Under Fed. R. Civ. P. 12(b)(6), the Court may dismiss a complaint, in
whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). On such a
motion, the well-pleaded factual allegations of the complaint must be taken as
true, with all reasonable inferences drawn in plaintiff’s favor. Phillips v. County
of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
Although a complaint need not contain detailed factual allegations, “a
plaintiff’s obligation to provide the ‘grounds' of [his] ‘entitlement to relief
requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2) (requiring a complaint to
plead “a short and plain statement of the claim showing that the pleader is
entitled to relief”). Thus, the factual allegations must be sufficient to raise a
plaintiff’s right to relief above a speculative level, demonstrating that it is
“plausible on its face.” See Twombly, 550 U.S. at 570; see also Umland v.
PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir.2008). This entails “plead[ing]
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard
is not akin to a ‘probability requirement’ . . . it asks for more than a sheer
possibility.” Id. at 678. Stated differently, in reviewing the well-pleaded factual
allegations and assuming their veracity, this Court must “determine whether
they plausibly give rise to an entitlement to relief.” Id. at 679.
Further, for claims sounding in fraud, Fed. R. Civ. P. 9(b) imposes a
heightened pleading requirement, over and above that of Rule 8(a): “In alleging
fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other conditions
of a person's mind may be alleged generally.” Fed. R. Civ. P. 9(b). Rule 9(b) thus
requires a complaint to state the circumstances of an alleged fraud with
“sufficient particularity to place the defendant on notice of the precise
misconduct with which [it is] charged.” Frederico v. Home Depot, 507 F.3d 188,
200 (3d Cir. 2007) (internal quotation marks omitted).
III. DISCUSSION
A. Breach of Contract Claims (Counts 1 & 2)
Plaintiff alleges that Wells Fargo and U.S. Bank breached the mortgage
and loan modification agreements with Plaintiff (Count 1) and that Wells Fargo
breached “agreements” between Wells Fargo and “federal government agencies
and/or government sponsored enterprises” to provide mortgage-holders “in
default with loss mitigation options,” violating Plaintiff’s rights as a third party
beneficiary (Count 2). (2AC ¶¶ 176-200.)
To state a New Jersey breach of contract claim, Plaintiff’s complaint must
plead “(1) the existence of a valid contract between the parties; (2) failure of the
defendant to perform its obligations under the contract; and (3) a causal
relationship between the breach and the plaintiff's alleged damages.” Mid-Atl.
Salt, LLC v. Morris Cnty. Coop. Pricing Council, 964 F.3d 218, 226 (3d Cir. 2020)
(citation omitted). “A plaintiff must identify the specific contract or provision
that was allegedly breached.” Barker v. Our Lady of Mt. Carmel Sch., Civ. No.
12-4308, 2016 WL 4571388, at *15 (D.N.J. Sept. 1, 2016). In comparison, a
third-party beneficiary claim requires Plaintiff’s complaint to plausibly allege
that Defendants “intended [Plaintiff] to benefit from the existence of the of the
contract,” rather than merely benefiting Plaintiff “as an unintended incident of
the agreement.” Ross v. Lowitz, 222 N.J. 494, 513, 120 A.3d 178, 189–90
(2015) (quoting Broadway Maint. Corp. v. Rutgers, State Univ., 90 N.J. 253,
259, 447 A.2d 906, 909 (1982)). “The contractual intent to recognize a right to
performance in the third person is the key.” Broadway, 447 A.2d at 909; see
also Dravo Corp. v. Robert B. Kerris, Inc., 655 F.2d 503, 510 (3d Cir. 1981)
(“New Jersey courts have been hesitant to imply a third-party beneficiary
obligation without an explicit indication by the parties that . . . [the third party]
will have a direct claim under the contract.”). Courts will glean that intent
“from an examination of the contract and a consideration of the
circumstances.” Rieder Cmtys., Inc. v. Township of N. Brunswick, 227 N.J.
Super. 214, 222, 546 A.2d 563, 597 (1988).
As to Count 1, Plaintiff claims that Wells Fargo violated the terms of his
mortgage, state law, and federal regulations by failing to provide him adequate
notice of his default or a loan modification (2AC ¶¶ 180-83), while U.S. Bank
violated his loan modification agreement by “unilaterally imposing” a verbal
repayment plan and demanding payments in “a confusing and varying manner”
(id. ¶¶ 188-89.) There is—just—a potential contract claim lurking within these
scattershot allegations, and I will give this pro se plaintiff the opportunity to
develop it. As this claim goes forward, however, the plaintiff will have to provide
evidence of a contract claim’s essential elements: offer and acceptance, a
reasonably specific description of the terms of the agreement, failure to perform
by Wells Fargo or U.S. Bank, and a breach that caused plaintiff’s damages.8
See Mid-Atl. Salt, 964 F.3d at 226. The precise contours of the alleged “verbal
repayment plan” will have to be fleshed out in discovery. While Plaintiff
provides an extensive list of claimed damages (2AC ¶ 199), he must take on the
burden of demonstrating that these damages were caused by Defendants’
conduct rather than by Plaintiff’s own failure to make mortgage payments, his
ineligibility for a loan modification, or his failure to prevail in the state
foreclosure proceeding.
The motion to dismiss is denied as to Count 1.
As to Count 2, Plaintiff specifies neither the contracts nor the
counterparties at issue, alleging only that Wells Fargo had undefined
“agreements” with “federal government agencies and/or government sponsored
enterprises.” (2AC ¶¶ 195-97.) However, this description would seem to imply
that all statutes and regulations are “contracts” between the banks and the
government, which they are not. It appears to restyle alleged statutory and
regulatory violations as contract claims, and then piggy-back a claim that
Plaintiff is a third-party beneficiary of those “contracts.” There are not sufficient
allegations that a contract existed or that a breach occurred, let alone any
allegation that Plaintiff had a legally enforceable right as between those third
parties. See Broadway, 447 A.2d at 909; Dravo, 655 F.2d at 510.
Count 2 will therefore be dismissed.

8 Moreover, Plaintiff’s allegation that U.S. Bank imposed the verbal temporary
repayment plan appears to contradict other allegations in his Second Amended
Complaint that the verbal agreement originated with either BNY or TIAA. (See 2AC 5,
23-37, 249.)
B. Negligence
Plaintiff claims that Defendants are liable for negligence because (1)
Wells Fargo breached its duty “to exercise reasonable diligence and care in
informing Plaintiff of his mortgage loan modification eligibility and mitigating
any resulting financial hardship” (2AC ¶¶ 205-09); and (2) U.S. Bank’s counsel
breached his duty “to act with reasonable prudence, caution, and care to avoid
and ensure against causing or creating an unreasonable risk of or actual harm
to any party in the foreclosure action including Plaintiff,” (id. ¶¶ 211-16.)
To make out a claim for negligence, a plaintiff must plausibly plead “(1)
that the defendant owed the plaintiff a duty of care; (2) that the defendant
breached that duty of care; and (3) that the defendant’s breach proximately
caused the plaintiff's injury.” Collick v. William Paterson Univ., No. 16-471 (KM)
(JBC), 2016 WL 6824374, at *26 (D.N.J. Nov. 17, 2016) (citing Boos v.
Nichtberger, 2013 WL 5566694, *4 (N.J. Super. Ct. App. Div. Oct. 10, 2013);
see also Endre v. Arnold, 300 N.J. Super. 136, 142, 692 A.2d 97, 100 (App. Div.
1997) (stating that these three elements “are essential for the existence of a
cause of action in negligence”). Here, Plaintiff has pled none of these elements
with sufficient specificity for his claim to survive a motion to dismiss.
Plaintiff offers only bare allegations that Defendants owed him a common
law duty to exercise reasonable diligence and care in administering Plaintiff’s
loan modification requests or in litigating the foreclosure of the Totowa
property—allegations that are, without more, legal conclusions that I need not
accept. They amount to an allegation that whatever contractual or regulatory
breaches occurred must have been negligent. But those breaches themselves
are the source of Plaintiff’s rights, whatever they are. While Defendants may be
bound to “a more general duty to act in a manner that d[oes] not create a
foreseeable risk of harm to others,” including Plaintiff, the conduct cited by
Plaintiff cannot be said to qualify as a breach of such duty. The appraisal of the
Totowa property, Wells Fargo’s refusal to grant any of Plaintiff’s seven loan
modification applications, and the conduct of U.S. Bank’s counsel appear to
have been aimed at fulfilling the terms of Plaintiff’s mortgage, either by finding
a feasible payment plan or by foreclosure. The damages that Plaintiff now
claims appear more as the natural and unfortunate consequences of the state
foreclosure proceedings. Such proceedings cannot be undone through the filing
of a state negligence claim in federal court.
For these reasons, Count 3 will be dismissed.
C. RESPA
RESPA is “a consumer protection statute that regulates the real estate
settlement process,” Jones v. ABN Amro Mortg. Grp., Inc., 606 F.3d 119, 124 (3d
Cir. 2010), and permits a private right of action for a borrower to enforce
RESPA and its associated regulations against a mortgage servicer, see Lloyd v.
New Jersey Hous. & Mortg. Fin. Agency, 845 F. App'x 139, 144 (3d Cir. 2021)
(citing 12 C.F.R. § 1024.41(a) and 12 U.S.C. § 2605(f)). Plaintiff specifically
alleges that Defendants violated 12 C.F.R. § 1024.41(b), a regulation
implementing RESPA that requires mortgage servicers to promptly review “loss
mitigation applications,” to provide notice about whether such applications are
complete, and to “exercise reasonable diligence in obtaining documents and
information to complete a loss mitigation application.” 12 C.F.R.
§ 1024.41(b)(1)-(2). But a plaintiff must plead that a RESPA violation had a
“causal link” with actual damages. Lloyd, 845 F. App’x at 144; Giordano v. MGC
Mortg., Inc., 160 F. Supp. 3d 778, 781 (D.N.J. 2016); see also Renfroe v.
Nationstar Mortg., LLC, 822 F.3d 1241, 1246 (11th Cir. 2016) (noting that
“damages are an essential element in pleading a RESPA claim” and requiring a
“causal link” between alleged violation and damages).
Plaintiff claims that Wells Fargo’s use of a “falsely prepared” appraisal
report to deny Plaintiff’s loss mitigation applications violated Wells Fargo’s
regulatory obligation to exercise reasonable diligence. Thus, for example, Wells
Fargo allegedly obtained an appraisal report that used comparable properties
that were “completely different” than the Totowa property. These allegations, I
find, state a RESPA claim.
Plaintiff will still need to demonstrate that the appraisal was something
more than just a disputed judgment call, that the report was the reason Wells
Fargo denied Plaintiff’s loan modification requests, or that it was the cause of
Plaintiff’s default and the ensuing foreclosure action—difficult burdens all. See
12 C.F.R. § 1024.41(a) (“Nothing in § 1024.41 imposes a duty on a servicer to
provide any borrower with any specific loss mitigation option.”).
The motion to dismiss Count 4, however, is denied.
D. Fair Debt Collection Practices Act & Truth in Lending Act
In Count 5, Plaintiff alleges that Wells Fargo, by incorrectly calculating
attorney fees associated with Plaintiff's loan modification applications,
informing Plaintiff he was ineligible for a loan modification, and by rejecting his
applications, violated the FDCPA’s prohibitions against using a “false,
deceptive, or misleading representation” or “unfair or unconscionable means”
in order to collect a debt.9 (2AC ¶¶ 232-33 (citing 15 U.S.C. § 1692e and 15
U.S.C. § 1692f).) In Count 6, Plaintiff claims that that U.S. Bank violated TILA
in denying Plaintiff’s requested loan modifications based on the “unreasonable”
conclusion that foreclosure would recover a greater proportion of outstanding
mortgage debt than the loan modification. (id. ¶¶ 241-42 (citing 15 U.S.C.
§ 1639a(a)(2)(C).)
The FDCPA is “geared towards eliminating abusive practices by debt
collectors” and, to effect that goal, “creates a private right of action against debt
collectors who violate its provisions.” St. Pierre v. Retrieval-Masters Creditors
Bureau, Inc., 898 F.3d 351, 358 (3d Cir. 2018) (citing 15 U.S.C. § 1692k). “To
prevail on an FDCPA claim, a plaintiff must prove that (1) she is a consumer,
(2) the defendant is a debt collector, (3) the defendant's challenged practice
involves an attempt to collect a ‘debt’ as the [FDCPA] defines it, and (4) the
defendant has violated a provision of the FDCPA in attempting to collect the
debt.” Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014).

9 Plaintiff also alleges without explanation that U.S. Bank is “severally liable” for
this conduct as well. (2AC ¶ 234.)
Plaintiff’s Second Amended Complaint offers only bare, conclusory
allegations that these elements are present. In particular, Plaintiff alleges that
Wells Fargo meets the definition of a debt collector under 15 U.S.C.A. §
1692a(6) (defining “debt collector” as “any person” who either “uses any
instrumentality of interstate commerce or the mails in any business the
principal purpose of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another”). Yet the Supreme Court in Henson v.
Santander Consumer USA Inc. observed that the plain language of § 1692a(6)
“seems to focus our attention on third party collection agents working for a
debt owner—not on a debt owner seeking to collect debts for itself.” 137 S. Ct.
1718, 1721–22 (2017). Indeed, it continued:
Neither does this language appear to suggest that we should care
how a debt owner came to be a debt owner—whether the owner
originated the debt or came by it only through a later purchase. All
that matters is whether the target of the lawsuit regularly seeks to
collect debts for its own account or does so for “another.” And
given that, it would seem a debt purchaser like Santander may
indeed collect debts for its own account without triggering the
statutory definition in dispute[.]”
Id. 1721–22 (2017).
Indeed, though Plaintiff’s Second Amended Complaint states that Wells Fargo
was the owner of Plaintiff’s mortgage during loss mitigation (2AC ¶ 49), it does
not provide any detail that would allow me to conclude either that the
“principal purpose” of Wells Fargo’s business is debt collection or that Wells
Fargo “regularly collects or attempts to collect” those debts “owed or due . . .
another,” 15 U.S.C.A. § 1692a(6). This deficiency, already fatal to Plaintiff’s
FDCPA claim, is only magnified by Plaintiff’s failure to plead the remaining
elements of his claim with anything approaching the requisite specificity. See
Twombly, 550 U.S. at 555 (requiring a complaint to plead more than “a
formulaic recitation of the elements of a cause of action”); see also Papasan v.
Allain, 478 U.S. 265, 286 (1986) (noting that on a motion to dismiss, courts
“are not bound to accept as true a legal conclusion couched as a factual
allegation”).
Plaintiff’s TILA claim is even less clearly pleaded. Initially, I note that the
substance of Plaintiff’s TILA claim falls short of Twombly/Iqbal pleadings
standards, but I rest my decision to dismiss it on a narrower ground. Though
exceptions, albeit inapplicable ones, exist to this rule, a TILA claim must
generally be filed “within one year from the date of the occurrence of the
violation.” 15 U.S.C. § 1640(e). Even assuming U.S. Bank violated TILA in
denying Plaintiff’s loan modification applications, its last denial of such an
application was in February 2019. Plaintiff initiated this instant action in
October 2020, approximately 20 months later. Thus, Plaintiff’s TILA claim,
whatever else its faults, is time-barred.
For these reasons, Counts 5 and 6 will be dismissed.
E. New Jersey Consumer Fraud Act
Plaintiff alleges that TIAA’s “unilateral” imposition of a verbal temporary
repayment plan and its “confusing and varying” demands for payment
pursuant to that plan constituted a violation of the NJFCA. (2AC ¶¶ 246-49.)
Moreover, he claims that Wells Fargo also violated the NJFCA by relying on a
“falsely prepared” appraisal report and an incorrect calculation of his income to
deny his applications for a loan modification. (Id. ¶¶ 251-62.)
The NJCFA is a consumer-protection statute prohibiting enumerated
unlawful practices “in connection with the sale or advertisement of any
merchandise or real estate.” D’Agostino v. Maldonado, 78 A.3d 527, 537 (N.J.
2013). “To state a claim under the NJCFA, a plaintiff must allege that the
defendant engaged in an unlawful practice that caused an ascertainable loss to
the plaintiff.” Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007)
(citation omitted). An “unlawful practice” under the NJFCA is:
The act, use or employment by any person of any unconscionable
commercial practice, deception, fraud, false pretense, false
promise, misrepresentation, or the knowing concealment,
suppression, or omission of any material fact with intent that
others rely upon such concealment, suppression, or omission, in
connection with the sale or advertisement of any merchandise or
real estate.
N.J. Stat. Ann. § 56:8–2. “Unlawful practices fall into three general categories:
affirmative acts, knowing omissions, and regulation violations.” Frederico, 507
F.3d at 202 (quoting Cox v. Sears Roebuck & Co., 647 A.2d 454, 462 (N.J.
1994)). Moreover, a complaint must plead that, as a result of a defendant’s
unlawful practice, the plaintiff “has suffer[ed] a definite, certain and
measurable loss, rather than one that is merely theoretical.” Payan v.
GreenPoint Mortg. Funding, Inc., 681 F. Supp. 2d 564, 572 (D.N.J. 2010)
(alteration in original) (quoting Bosland v. Warnock Dodge, Inc., 964 A.2d 741,
749 (N.J. 2009).
Here, Plaintiff’s Second Amended Complaint fails to plead the elements of
an NJCFA claim with sufficient specificity to show that he is entitled to relief.
Even granting Plaintiff every favorable inference, see Phillips, 515 F.3d at 231,
Plaintiff has not shown that TIAA’s temporary repayment plan or Wells Fargo’s
reliance on a flawed appraisal report or faulty software for calculating income
constitute an “unconscionable commercial practice” within the meaning of the
statute, see D’Agostino, 78 A.3d at 540 (“a simple breach of warranty or breach
of contract is not per se unconscionable.”); Cox, 647 A.2d at 462 (noting that
an NJFCA claim requires “substantial aggravating circumstances [to] be
present in addition to the breach”).10 Further, despite Plaintiff’s amendments,
his Second Amended Complaint still fails to show that TIAA’s and Wells Fargo’s
conduct caused him “definite, certain, and measurable loss.” Payan, 681 F.
Supp. 2d at 572. Indeed, Plaintiff states that his damages all stem from his
inability to obtain a loan modification yet has not demonstrated that he had a
legal entitlement to one, let alone one that was assured to prevent his default.
For these reasons, Count 7 will be dismissed.

10 The Second Amended Complaint pleads affirmative acts, rather than omissions,
as the potential basis for Defendants’ liability. See Cox, 647 A.2d 454, 462-63.
F. Plaintiff’s Remaining Claims
In the remaining Counts of Plaintiff’s complaint, he claims that
Defendants engaged in unfair competition and unfair, deceptive practices in
violation of the Unfair Claims Settlement Practices Act (“UCSPA”), N.J. Stat.
Ann. §§ 17:29B-1 to 17:29B-19, improperly served the state foreclosure
pleadings under N.J. Ct. R. 4:4-3(a), failed to comply with the Uniform
Standards of Professional Appraisal Practice as required under N.J. Admin.
Code 13:40A-6.1, and initiated a foreclosure action in violation of their contract
with Plaintiff.
Without delving much into its merits, I perceive that Plaintiff’s claim
under the UCSPA is clearly deficient. The statute cited, N.J. Stat. Ann.
§ 17:29B-4, explicitly applies to “unfair methods of competition and unfair and
deceptive acts or practices in the business of insurance,” (emphasis added), not
mortgage lending. Moreover, the UCSPA does not provide for a private cause of
action, rendering Plaintiff’s claim invalid. See Carevel, LLC v. Aspen Am. Ins.
Co., No. 2:13-CV-7581 (WHW), 2016 WL 6775647, at *5 (D.N.J. Nov. 15, 2016);
Pierzga v. Ohio Cas. Grp. of Ins. Companies, 208 N.J. Super. 40, 47, 504 A.2d
1200, 1204 (App. Div. 1986).
As for violation of state service of process rules, Plaintiff fails to establish
that there is a private cause of action, federal or state. The alleged violation of
Uniform Standards of Professional Appraisal Practice likewise do not give rise
to a private federal cause of action, even if it might constitute professional
misconduct on the part of the appraiser. See N.J. Admin. Code § 13:40A-6.1(b).
Plaintiff’s last claim, for “wrongful foreclosure,” appears to be no more than a
restatement of his earlier breach of contract claims. At any rate, he will have no
claim unless and until the foreclosure has been found to be wrongful, which
thus far has not occurred.
For these reasons, Counts 8, 9, 10, and 11 will be dismissed.
G. Defendant’s Requests to File a Surreply and for Discovery
Finally, I turn to Plaintiff’s request to file a sur-reply based on “newly
discovered claims and arguments against Defendants” and for discovery
pursuant to Fed. R. Civ. P. 56(d). (DE 71, 77, 78, 80, 81, 82, 84.) “Newly
discovered claims” cannot be inserted into a case via a brief. No sufficient
reason is given for failure to assert supplemental “arguments” earlier. I
therefore exercise my discretion to deny the application(s) to file a surreply or
surreplies. The operative complaint is the Second Amended Complaint, and I
have focused my attention on the sufficiency of the allegations in that
Complaint, as is proper on a motion to dismiss. Defendants cannot be asked to
aim their arguments at a constantly moving target. That said, I have surveyed
Plaintiff’s submissions, which do not alter my above conclusions.
Plaintiff, in the guise of a surreply, has submitted what amounts to a
motion for summary judgment, with voluminous exhibits. A surreply is not the
proper vehicle for such contentions. Plaintiff has also belatedly requested
discovery and a delay of his deadline to respond to the motion to dismiss. He
has already responded to that motion, however. His objection to the Magistrate
Judge’s suspension of discovery while the motion to dismiss remains pending
is denied as moot.
The case will proceed in the usual course, based on the non-dismissed
claims, with discovery as appropriate under the supervision of the able
Magistrate Judge.
H. JPMorgan’s Motion to Dismiss
As previously mentioned, the prior assignment of Plaintiff’s mortgage
erroneously named JPMorgan Chase Bank (“JPMorgan”) as the mortgage
servicer, an error that was corrected in 2016. (JPMorgan MTD at 3; Defs. MTD
at 2-3.) Plaintiff neither addresses JPMorgan’s argument that it has been
erroneously named in this action, (JPMorgan MTD at 2-3), nor articulates why
he has named JPMorgan as a defendant in this action.
As it appears that JPMorgan is not a proper defendant, I will grant the
motion to dismiss Plaintiff’s Second Amended Complaint as to JPMorgan.
IV. CONCLUSION
A word in closing. I have been indulgent with a pro se litigant who is
pursuing a scorched-earth policy of delay in multiple forums to stave off
foreclosure. I have given his briefs and his complaint, which are verbose but
non-specific at key points, a liberal reading. Plaintiff is cautioned that he must
file motions, and respond to motions, in the prescribed format, without
extraneous submissions and within the prescribed page limits, or risk having
his submissions disregarded.
For the reasons set forth above, the motions to dismiss are GRANTED in
part and DENIED in part.
A separate order will issue.
Dated: February 15, 2022

/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272560. Public record. Not legal advice.