MCLEAN v. SUMITRA

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RUTH T. MCLEAN,

Plaintiff,

Civil Action No, 23-22842 (RK) BD)

Vv.

AIMEE D. SUMITRA, et al, OPINION

Defendants.

KIRSCH, District Judge

THIS MATTER comes before the Court upon a Motion to Dismiss the Second Amended

Complaint filed by Defendants PNC Bank, N.A. (“PNC Bank’), Aimee D. Sumitra, and Thomas

W. Morris (collectively, the “PNC Defendants”). (“Motion,” ECF No. 59.) Plaintiff Ruth T.

McLean (“Plaintiff”), proceeding pro se, opposed the Motion (ECF Nos. 63, 64), and the PNC

Defendants replied (ECF No. 65).!

Having considered the parties’ submissions, the Court resolves the pending Motion without

oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the

reasons set forth below, the PNC Defendants’ Motion to Dismiss the Second Amended Complaint

(ECF No. 59) is GRANTED, and this case is DISMISSED against the PNC Defendants with

prejudice. In addition, the Court sua sponte DISMISSES the Second Amended Complaint’s

' After the PNC Defendants replied, Plaintiff filed a nine-page “Affidavit of Facts” in response to the PNC

Defendants’ briefing. (ECF No. 66.)

claims against the remaining Defendants, as the Court finds the Defendants were improperly

joined.”

I. BACKGROUND

A. THE FORECLOSURE ACTION

Plaintiff has been engaged in a years-long litigation campaign— that has usurped the

resources of state and federal courts in New Jersey alike—in an effort to halt a state court

foreclosure action against her property in Plainsboro, New Jersey. On March 20, 2023, Defendant

PNC Bank filed a Complaint in Foreclosure against Plaintiff in the Superior Court of New Jersey,

Middlesex County, Chancery Division, General Equity (the “Foreclosure Action’”).’ (“Reiley

Cert.,”” ECF No. 59-2 at Ex. A); see PNC Bank, N.A. v. Ruth T. McLean, No, F-3424-23 (N.J.

Super. Ct. Ch. Div. 2023). Without relying on the facts in the Complaint in Foreclosure for

purposes of deciding the Motion,’ the Complaint in Foreclosure alleges that on November 21,

2016, Plaintiff borrowed $170,000 from Gateway Mortgage Group, LLC (“Gateway”) and

subsequently executed a note to Gateway on the same day.” (/d. | 1) To secure payment of the

note, Plaintiff then allegedly signed and delivered a mortgage on her real property located at 143

* The remaining Defendants are Joshua Hahn and U.S. Bank, N.A. (together, the “U.S. Bank Defendants”),

as well as Caitlin M. Donnelly, Esq., J. Eric Kishbaugh, Esq., Richard P. Abel, Esq., Brian C. Nicholas,

Esq., Denise Carlon, Esq., and KML Law Group, P.C. (collectively, the “KML Defendants”).

3 The Court may take “judicial notice of the state court proceedings, which are a matter of public record.”

McDonald v. Jones, 427 F, App’x 84, 85 n.1 (3d Cur, 2011).

4 Indeed, “[w]hile the Court may take judicial notice of each of these records, use of the records is limited.

When a court takes judicial notice of a document, it ‘may . . . not [be considered] for the truth of the matters

purportedly contained within those documents.’” Roche v. Aetna, Inc., No. 22-00607, 2023 WL 3173394,

at *4 (D.N.J. May 1, 2023) (quoting Oran v. Stafford, 226 F.3d 275, 289 (3d Cir. 2000)).

5 Plaintiff attached the executed loan application to Gateway (‘‘Loan,” ECF No. 64-1) and note (‘‘Note,”

ECF No. 64-2) to her Opposition to the PNC Defendants’ Motion; the documents corroborate the

allegations in Defendant PNC Bank’s Complaint in Foreclosure. See Mayer y. Belichick, 605 F.3d 223, 230

(3d Cir. 2010) (stating that at the motion to dismiss stage, a court may only consider “the complaint, exhibits

attached to the complaint, matters of public record, as well as undisputedly authentic documents if the

complainant’s claims are based upon these documents”). Here, the SAC is clearly based on the Loan and

Note, and thus the Court will consider both in deciding this Motion.

Hampshire Drive, Plainsboro, New Jersey 08536. Ud. JJ 2-3.) The mortgage was thereafter

assigned to PNC Bank, which brought the Foreclosure Action. (fd. ¥ 2(b).)

On January 12, 2024, the Honorable Lisa M. Vignuolo, P.J.Ch. granted PNC Bank’s

Motion for Summary Judgment and dismissed Plaintiff’s “affirmative defenses and quiet title

claim.” (Reiley Cert. at Ex. C.) Judge Vignuolo ordered the matter “returned to the Office of

Foreclosure as uncontested.” (/d.) On June 13, 2024, Judge Vignuolo entered a Final Judgment for

Foreclosure in favor of PNC Bank. (/d. at Ex. D.) Plaintiff subsequently appealed the judgment to

the Appellate Division on September 17, 2024 (see id. at Ex. E), and PNC Bank has represented it

has moved to dismiss the appeal, with such motion currently pending before the Appellate

Division. (ECF No. 59-1 at 4.)

Notably, on December 12, 2024, the Honorable Michael A. Toto, A.J.S.C. imposed

restraints on Plaintiff’s filings within the state court system, enjoining her from “filing any further

civil complaints or motions in the Superior Court in the State of New Jersey against PNC Bank

... until the complaint or motion has been reviewed by the Assignment Judge of Middlesex

County.” “Supp. Reiley Cert.,” ECF No. 65-1 at Ex. F at 2); see In the Matter of Ruth T. McLean,

No. MID F-3424-23 (N.J. Super. Ct. Ch. Div. 2024). Judge Toto specifically found that:

Ruth T. McLean filed approximately 18 applications in the instant foreclosure

matter and 4 in a related case (MID-C-60-23), most of which are repetitive and

procedurally deficient; and... Ruth T. McLean is a serial filer of motions in

Chancery Division, General Equity Part duplicative of prior applications [] which

do not raise new issues of merit and unfairly burdens the court system; and... the

imposition of monetary sanctions would not be successful in curtailing Ruth T.

McLean’s continued abuse of the litigation process.

(Ud. at 2.)

B. THE INSTANT FEDERAL ACTION®

Plaintiff's serial filings in the instant matter are out of the same playbook as those in the

Foreclosure Action, and all relate in some way to contesting the Foreclosure Action and the PNC

Defendants’ debt collection practices pursuant to the Foreclosure Action.’ Over the course of ten

months, this Court not only dismissed what it deemed the “Operative Complaint” in the matter,

but also denied Plaintiff's four Motions for Temporary Restraining Orders (see ECF Nos. 6, 11,

17, 54), two Motions for Leave to Amend (see ECF Nos. 22, 40), and one Motion for Sanctions

against PNC Bank and its counsel (see ECF No. 51).°

As relevant to this Motion, the Court notes that Plaintiff has filed or has proposed to file

five different versions of a complaint in this matter. Plaintiff initially filed a 22-page Complaint

and Request for Injunction against the PNC Defendants and the Ohio Secretary of State, the

Pennsylvania Secretary of the Commonwealth, and the Delaware Secretary of State (together with

the Ohio Secretary of State and Pennsylvania Secretary of the Commonwealth, the “Secretary of

State Defendants”) on November 30, 2023. (See ECF No. 1 at *3-4.) The initial Complaint’s

allegations and claims were, charitably, difficult to discern. For example, the Complaint stated that

Plaintiff brought the action under the “Fair Housing Act section 837, section 245, 701, National

6 Pin-cites preceded by an asterisk refer to the page numbers in the CM/ECF header.

7 The SAC indicates this Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1332

as the amount in controversy is “up to $150,000” (SAC at *15), and the parties are citizens of different

states. Ud. Jf 1, 5-8 Gndicating Plaintiff is a citizen of New Jersey, but Defendants are citizens of

Pennsylvania and Ohio).) The Court notes that the SAC does not allege the citizenship of Defendants U.S.

Bank and Joshua Hahn, but because the Court dismisses those Defendants as improperly joined, this is of

no concern.

8 Plaintiff has made a handful of other filings, including a 12-page “Writ of Removal,” which sought the

same relief Plaintiff has consistently been denied by the Court—a stay of the Foreclosure Action. (See ECF

No. 49 at 1.) Plaintiff also filed a letter that requested the Court to subpoena documents from the PNC

Defendants in relation to Plaintiff's Motion for Sanctions. (ECF No. 53.)

Currency Act section et seq.[,] Amendment, Preamble to Constitution- Life, Liberty and pursuit

of Happines [sic]; Article for contracts.” Ud. at *5.) Yet, two pages later, Plaintiff described the

relief sought as:

Damages sought for all the above factual claims possess actual prior court awarded

damages: Coloring Title: Unlawful Note Negotiable Instrument Conversion:

Consumer Fraud: Injunction against the State Court, MIDDLESEX COUNTY

SUPERIOR COURT, CHANCERY DIVISION, SWF-F-003424-23, venue has no

jurisdiction based on the contract. may cause harm under Rooker-Feldman

Doctrine.

(Ud. at *7.)

Months later, Plaintiff continued her kitchen-sink approach to this litigation by filing two

Proposed Amended Complaints. (See ECF No. 22 at *3—8 (filing the proposed amendment as part

of her first Motion for Leave to Amend; ECF No. 40 at *1—2 (filing the proposed amendment as

part of her second Motion for Leave to Amend).) The Proposed Amended Complaints sought to

add new Defendants (Gateway First Bank and Freddie Mac) and different claims, including claims

for “racketeering,” “debt peonage-involuntary servitude,” defamation, identity theft, “servicer

misconduct,” “transaction misrepresentation,” and violation of consumer protection laws. □□□□

Without waiting for the Court to rule on either of Plaintiffs pending Motions for Leave to Amend,

Plaintiff unilaterally filed her First Amended Complaint. (ECF No. 47.) The First Amended

Complaint brought claims against only the PNC Defendants and “John and Jane Does 1-5” for

violation of the Fair Debt Collection Practices Act (“FDCPA”), violation of the New Jersey Fair

Credit Reporting Act, fraud, and civil conspiracy. (7d.)

In granting Motions to Dismiss filed by Defendant Ohio Secretary of State and the PNC

Defendants (see ECF Nos. 15, 48), the Court considered the allegations in both Plaintiff's initial

Complaint (ECF No. 1) and First Amended Complaint (ECF No. 47) (together, the “Operative

Complaint’), and found that (i) the 1793 Anti-Injunction Act prohibited the Court from enjoining

the Foreclosure Action; and (ii) the Operative Complaint failed to comply with Federal Rule of

Civil Procedure 8’s pleading standards, given that its allegations ranged from confusingly dense

to skeletal and conclusory so as to fail under Ashcroft v. Iqbal, 556 U.S. 662 (2009). (ECF No. 55.)

The Court permitted Plaintiff thirty days to file an amended pleading “that respond[ed] to or

cur[ed] the defects identified” in the Operative Complaint. (ECF No. 56.)

Now, Plaintiff has filed an almost-entirely-brand-new Second Amended Complaint.

(“SAC,” ECF No. 57.) While still naming the PNC Defendants, the SAC names two new sets of

Defendants: the U.S. Bank Defendants and KML Defendants.’ (Id.) The SAC alleges ten counts,

most of which have never appeared in any of Plaintiff's proposed or actual pleadings to date:

violation of the FDCPA (Count I), violation of the Real Estate Settlement Procedures Act

(“RESPA”) (Count ID), violation of the Truth in Lending Act (“TILA”) (Count I), civil

conspiracy (Count IV), violation of the New Jersey Consumer Fraud Act (“NJCFA”) (Count V),

violation of the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (““TCCWNA”)

(Count VI), negligence (Count VID), negligent infliction of “mental anguish emotional distress”

(Count VIID, intentional infliction of emotion distress (‘TIED’) (Count IX), and negligent

infliction of emotional distress (Count X), (/d. at 3-10.) Plaintiff seeks damages “up to $150,000,”

as well as a “[dJeclaratory decision upon review of the Note as to whose obligation to pay interest,”

and “the return of Plaintiff's Property.” Ud. at 11.)

The PNC Defendants filed a Motion to Dismiss the Second Amended Complaint on

November 22, 2024. (ECF No. 59.) Plaintiff filed two separate oppositions to the Motion (ECF

The KML Defendants are listed on the Foreclosure Action’s Complaint in Foreclosure as counsel for PNC

Bank. (See Reiley Cert. at Ex. A at 1.) The KML Defendants are the only group of Defendants who have

not yet entered an appearance in this matter, but the Court notes that it may well be that none of the KML

Defendants were properly served with process. It appears Plaintiff improperly served all the KML

Defendants by sending unsigned summonses in one certified mailing to “PNC Bank N.A. c/o KLM [sic]

Law Group P.C.” at KML Law Group’s business address. (See ECF No. 61 at *4.)

Nos. 63, 64),!° and the PNC Defendants replied. (ECF No. 65.) After the PNC Defendants replied,

Plaintiff filed an “Affidavit of Facts” that is essentially a sur-reply to the PNC Defendants’ Reply.

(ECF No. 66.)

IL. LEGAL STANDARD

A. FEDERAL RULES OF CIVIL PROCEDURE 18(A) AND 20(A)(2)

Pursuant to Federal Rule of Civil Procedure (“Rule”) 18(a), “[a] party asserting a claim...

may join, as independent or alternative claims, as many claims as it has against an opposing party.”

Fed. R. Civ. P. 18(a). However, in a multi-defendant case such as this one, “the propriety of jomder

is most directly controlled by the Rule 20 limits on joinder of defendants.” McKinney v. Hemsley,

No. 14-3564, 2015 WL 5949846, at *3 (D.N.J. Oct. 9, 2015). Rule 20(a)(2) states that persons

may be joined in one action as defendants where:

(A) any right to relief is asserted against them jointly, severally, or in the alternative

with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

0 The Court observes that the two oppositions have very different tones, styles, formatting, and

coherency—to the point where it stretches the bounds of credulity that they were both drafted by pro se

Plaintiff. For example, Plaintiff's first opposition includes clear formatting and—while not necessarily on

point—cogent analysis of some of the PNC Defendants’ arguments in its Motion. (See ECF No. 63.)

However, Plaintiff’s second opposition is the complete opposite, opening with the paragraph:

Affiant/Consumer/Guarantor/Payee/Plaintiff: I am Mclean, Ruth-T/agent control interest

party of the RUTH T MCLEAN /principal person account named endorsement identified

on the $170,000 Note and Mortgage for ownership interest acquired in the consumer

principal dwelling instruments on November 21, 2016.

(ECF No. 64 at *2.) The Court notes that there are similar diverging tones, styles, formatting, and coherency

between Plaintiff's initial Complaint (see ECF No. 1), First Amended Complaint (see ECF No. 47), and

Second Amended Complaint (see ECF No. 57). This obviously concerns the Court, because beyond the

myriad of professional and ethical issues with Plaintiff potentially retaining a lawyer but still representing

that she is proceeding pro se, the Court will not hold pleadings drafted by a lawyer to the less-stringent

standard afforded pro se litigants. See Cason v. Middlesex Cnty. Prosecutors’ Off., No. 18-2101, 2022 WL

2871195, at *3 (D.N.J. July 21, 2022). Nevertheless, given that the Court dismisses Plaintiff's Second

Amended Complaint with prejudice here, it will afford Plaintiff leniency solely for purposes of disposing

of the instant Motion.

Fed. R. Civ. P. 20(a)(2). While the requirements of Rule 20(a)(2) are to be “liberally construed,”

they are not “license to join unrelated claims and defendants in one lawsuit.” Fisher v. Camden

Cuty. Corr. Facility, No, 21-13212, 2023 WL 4295770, at *3 (D.N.J. June 29, 2023) (quoting

Rouse v. Starks, No. 16-3422, 2018 WL 707943, at *5 (D.N.J. Feb. 2, 2018)). This would constitute

improper joinder.

Where the Court finds that there has been improper joinder, “[o]n motion or on its own,

the court may at any time, on just terms, add or drop a party. The court may also sever any claim

against a party.” Fed. R. Civ. P. 21. Where a court “drop[s]” an improperly joined party, “that

defendant is dismissed from the case without prejudice.” DirecTV, Inc. v. Leto, 467 F.3d 842, 845

(3d Cir. 2006).

B. FEDERAL RULE OF CIVIL PROCEDURE 8

Federal Rule of Civil Procedure 8 requires a complaint to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Each

allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). Rule 8’s purpose is to “give

the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Ati.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

While under Rule 8(a) plaintiffs are not required to set forth detailed factual allegations in their

complaints, they have an “obligation to provide the ‘grounds’ of [their] ‘entitle[ment] to relief.’”

Td.

C. FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6)

For a complaint to survive dismissal under Federal Rule of Civil Procedure 12(b)(6), it

must contain sufficient factual matter to state a claim that is “plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially 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.” Id. However, allegations that are “no more

than conclusions” may be disregarded. Jd. at 679. Restatements of the elements of a claim are legal

conclusions, and therefore, are inadequate alone to survive dismissal. See Burtch v. Milberg

Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The court accepts allegations in the complaint as

true and gives the plaintiff “the benefit of every favorable inference to be drawn therefrom.”

Kulwicki v. Dawson, 969 F.2d 1454, 1462 Gd Cir. 1992). “Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

DISCUSSION

The Court first addresses the improper joinder of the New Defendants before turning to the

merits of the SAC as it applies to the remaining set of Defendants, the PNC Defendants.

A. THE NEW DEFENDANTS

“A district court may raise the issue of improper joinder sua sponte.” Alfred v. New Jersey,

No. 13-0332, 2015 WL 4138882, at *2 (D.N.J. July 9, 2015). For the first time in her Second

Amended Complaint—and without seeking leave—Plaintiff seeks to bring claims against two new

sets of Defendants: the U.S. Bank Defendants and the KML Defendants (together, the “New

Defendants”). (See SAC at *2.) The crux of Plaintiffs allegations are that the U.S. Bank

Defendants “failed [sic] obligation to pay interest on the Note,” (id. { 17), and the KML Defendants

“filed baseless legal actions to intimidate and unlawfully collect debts” (id. § 16). However, back

when the Court permitted Plaintiff to file an amended pleading “that respond[ed] to or curfed]

the defects identified’ in the Operative Complaint, (ECF No. 56 (emphasis added)), the only

transaction at issue involved the PNC Defendants “act[ing] fraudulently and generat[ing] false

certifications (individually and separately) in an attempt to collect debt from Plaintiff.” (See ECF

No. 47 ¥ 10.)

“A limited grant of leave to amend does not entitle Plaintiff[] to amend the complaint

outside the scope of that leave.” T.J. McDermott Transp. Co., Inc. v. Cummins, Inc., No. 14-4209,

2017 WL 11476192, at *2 (D.N.J. Jan. 17, 2017). Because Plaintiff was not granted leave to amend

the Operative Complaint to add additional claims and Defendants in this matter, Plaintiff’s

amendments to add the New Defendants can be stricken pursuant to Federal Rule of Civil

Procedure 15(a)(2). Fed. R. Civ. P. 15(a)(2) (“[A] party may amend its pleading only with the

opposing party’s written consent or the court’s leave”); see Giles v. Med. Contractor CMS, No.

09-045, 2009 WL 1024679, at *3 (D. Del. Apr. 15, 2009) (“Plaintiff may not add new claims or

new defendants without secking leave to amend.”)

Even so, Plaintiff's claims against each set of Defendants in this matter only appear to

tenuously arise “out of the same transaction, occurrence, or series of transactions or occurrences.”

Fed. R. Civ. P. 20(a)(2)(A). While it appears Plaintiff is alleging the acts of Defendants all occurred

in light of the Foreclosure Action, there is significant attenuation and scant overlap between (1) the

U.S. Bank Defendants purportedly failing to pay interest on the Note; (ii) the KML Defendants

opting to file purportedly “baseless legal actions” against Plaintiff, and (i11) the PNC Defendants

“generat[ing] false certifications.” Indeed, it does not appear that these are the same transaction or

occurrence. /d.; see Dougherty v. Dupes, No. 17-01541, 2018 WL 3869742, at *2 (M.D. Pa. Aug.

15, 2018) (‘Although the court anticipates that [pro se plaintiff] might offer the conclusory

averment of an imagined overarching conspiracy, it would be inadequate to assuage this court that

it should exercise its discretion to join these additional defendants in this action.”’) Thus, the Court

10

DISMISSES the SAC’s claims as brought against the U.S. Bank Defendants and KML

Defendants, as these New Defendants were improperly joined.

B. THE PNC DEFENDANTS

The Court finds that the SAC should be dismissed with prejudice against the remaining

Defendants—the PNC Defendants—on three grounds: (i) the Anti-Injunction Act of 1793;

(ii) statute of limitations; and (iii) failure to meet the elements of the claims underlying the SAC’s

Counts."

1. Anti-Injunction Act of 1793

Much like in the Operative Complaint, Plaintiff still seeks to have this Court enjoin the

Foreclosure Action by having the Court order “the return of Plaintiff's property.”!? (SAC at *15.)

As the Court made clear in its Opinion dismissing the Operative Complaint (ECF No. 55 at 14),

the Anti-Injunction Act imposes “an absolute prohibition [] against enjoining state court

proceedings, unless the injunction falls within one of three specifically defined exceptions.” Atl.

Coast Line R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286 (1970); see Chick Kam Choo

The PNC Defendants also renew their argument that the Court must abstain from hearing this matter

pursuant to the Colorado River abstention doctrine as this matter is parallel to the Foreclosure Action. (ECF

No, 59-1 at 9-14.) While the Court acknowledges the PNC Defendants provided additional support for their

argument in the Motion, the Court remains skeptical that this matter has “substantially identical claims

[and] nearly identical allegations and issues.” (See ECF No. 55 at 14); Nationwide Mut. Fire Ins. Co. v.

George V. Hamilton, Inc., 571 F.3d 299, 307 (3d Cir. 2009) (quoting Yang v. Tsui, 416 F.3d 199, 204 n.5

(3d Cir. 2005)), The PNC Defendants sought a judgment of foreclosure in the Foreclosure Action (see

Reiley Cert. at Ex. D); here, Plaintiff seeks damages (and to some extent, injunctive relief) in connection

with the PNC Defendants’ purported debt collection practices, (see SAC at *15 (indicating Plaintiff seeks

“compensatory/statutory damages .. . up to $150,000”)). See also DeHart v. U.S. Bank, N.A. ND, 811 F.

Supp. 2d 1038, 1046 (D.N.J. 2011) (finding a “state foreclosure action” that involved a bank defendant

“seeking a judgment of foreclosure on property subject to a mortgage” not parallel to a federal action

“seek{ing] only damages for various debt collection practices [that did] not seek to invalidate the foreclosure

proceeding”). Therefore, the Court rejects the PNC Defendants’ Colorado River arguments, but nonetheless

dismisses the matter on other grounds.

2 This is contrary to her Opposition to the PNC Defendants’ Motion where she argues that “Plaintiff is not

seeking to enjoin the state foreclosure action but rather seeks damages and declaratory relief for Defendants’

violations of federal and state law.” (ECF No. 63 at 5.)

11

v. Exxon Corp., 486 U.S. 140, 146 (1988) (noting the Act’s three narrowly-read exceptions apply

only “when expressly authorized by statute, necessary in aid of the court’s jurisdiction, or

necessary to protect or effectuate the court’s judgment’). Here, the Court has already held that no

exception to the Act applies (see ECF No. 55 at 15), and thus the Court is prohibited from enjoining

the Foreclosure Action.!?

2. Statute of Limitations

The PNC Defendants assert that the statute of limitations on Plaintiff’s TILA claim (Count

TV)—which relates back to a Loan and Note issued in 2016—has run, and thus, the claim is time-

barred. See Calabria Ristorante, Inc. v. Ruggiero Seafood, Inc., 706 F. Supp. 3d 489, 511 (D.N.J.

2023) (“The statute of limitations ‘can serve as the basis for dismissal under Fed. R. Civ. P.

12(b)(6), as long as the time alleged in the statement of a claim shows that the cause of action has

not been brought within the statute of limitations.’” (quoting McPherson v. United States, 392 F.

App’x 938, 943 Gd Cir. 2010)).

Here, Plaintiff's TILA claim (Count I) is based on several purported failures in disclosure

by the PNC Defendants. (See, e.g. SAC Jf 36(a) (“Failure to Provide Right of Recission Notices”);

36(b) (“Failure to Provide Rights to [C]redit”).) It is true that the “TILA requires lenders to make

certain disclosures to borrowers and gives borrowers a civil cause of action against creditors who

violate these disclosure provisions.” Ramadan v. Chase Manhattan Corp., 156 F.3d 499, 500 (3d

Cir, 1998), However, a TILA claim based on the omissions of a lender “is subject to a one-year

statute of limitations, which begins to run when the underlying contract is executed.” Herzog v.

8 Plaintiffs request to this Court to issue a “[d]eclaratory decision upon review of the Note as to whose

obligation to pay interest” (SAC at *15), would almost certainly disrupt the Foreclosure Action, and thus

is also barred by the Anti-Injunction Act. See U.S. Steel Corp. Plan for Emp. Ins. Benefits v. Musisko, 885

F.2d 1170, 1175 (3d Cir. 1989) (“Where, as here, declaratory relief would produce the same effect as an

injunction, a declaratory judgment is barred. ..”).

12

IndyMac Bank, FSB, No. 11-4571, 2011 WL 5513205, at *3 (D.N.J. Nov. 9, 2011) (citing 15

U.S.C. § 1640(e)). As is clear from the Loan and Note, both documents were executed on

November 21, 2016. (Loan at *3; Note at *2.) Thus, Plaintiff's TILA claim comes well outside the

limitations period.

In her Opposition, Plaintiff argues that “equitable tolling applies due to Defendants’

fraudulent concealment of material facts.” (ECF No. 63 at 7.) However, “[a] plaintiff who made

the ordinary error of not reading a contract may not invoke the extraordinary remedy of equitable

tolling.” Aversano v. Santander Bank, N.A., 828 F. App’x 109, 110 (Gd Cir. 2020). Plaintiff alleges

that “Defendants failed to disclose critical information about the loan, including the annual

percentage rate (APR), finance charges, and the payment schedule.” (ECF No. 63 at 7.) Yet, the

very first page of the Note states that interest will be charged at a “yearly rate of 3.625%” and that

payments will be made “on the day of each month beginning on January 17, 2017” in the amount

of “$775.29.” (Note at *2.) The Note also lays out information about loan charges and late charges

for overdue payments. (See id. at *3.) Plaintiff's claim that Defendants “failed to disclose critical

information about the loan” is belied by the Note’s explicit terms. Count II is untimely, and thus,

DISMISSED.

3. Failure to Meet the Elements of the Claims Underlying the SAC

The PNC Defendants attack the substance of Plaintiff's remaining claims pursuant to Rule

12(b)(6), arguing in sum that Plaintiff failed to allege one or more elements of the remaining

Counts of the SAC.

i. Failure to Allege a “Debt Collector”

To start, to make out an FDCPA claim (Count J), a plaintiff must allege, in part, that “the

defendant is a debt collector.” Barbato v. Greystone All., LLC, 916 F.3d 260, 265 (3d Cir. 2019).

However, the PNC Defendants argue that PNC Bank is not a debt collector, but rather, a creditor.

13

(ECF No. 59-1 at 16.) “Creditors—as opposed to debt collectors—generally are not subject to the

FDCPA.” Cooper v. Pressler & Pressler, LLP, 912 F. Supp. 2d 178, 184 (D.N.J. 2012) (internal

citations omitted); see also Staub v. Harris, 626 F.2d 275, 277 (3d Cir. 1980) (“The [FDCPA] does

not apply to persons or businesses collecting debts on their own behalf. . . It is directed to those

persons who are engaged in business for the principal purpose of collecting debts.”)

Here, the SAC fails to allege that PNC Bank is a “debt collector,” beyond a conclusory

allegation that “Defendants, acting as debt collectors with respect to Plaintiff's mortgage debt,

engaged in multiple violations of the FDCPA ...” (SAC § 22.) While it appears to the Court that

Defendant PNC Bank is clearly a creditor seeking to collect its own debt through the Foreclosure

Action, Plaintiff nonetheless fails to support its “[t]hreadbare recital” of PNC Bank as a “debt

collector’ with sufficient facts for this Court to determine whether the FDCPA is applicable. See

Saafir v. Bayview Loan Servicing, LLC, No. 17-3735, 2018 WL 1069413, at *3 (D.N.J. Feb, 26,

2018), aff'd, 751 F. App’x 166 (3d Cir. 2018) (dismissing FDCPA claim where the “complaint

simply d[id] not provide sufficient facts for [the] Court to determine whether [lender] [was] a ‘debt

collector’ for purposes of the FDCPA”). Thus, the Court DISMISSES Count I.

ii. Failure to Allege Damages

Plaintiff's RESPA claim (Count ID) also fails. As part of making out a RESPA claim, a

plaintiff must allege “actual damages to the borrower as a result of the failure to comply with [12

US.C.] § 2605.” Noel v. Bank of New York Mellon, No. 18-04798, 2019 WL 1434939, at *5

(D.N.J. Apr. 1, 2019) (quoting Giordano v. MGC Mortg., Inc., 160 F. Supp. 3d 778, 781 (D.N.J.

2016)). Plaintiff's RESPA claim has two bases: (i) Defendants purportedly failed to acknowledge

and take appropriate action on qualified written requests sent by Plaintiff; and Gi) Defendants

allegedly engaged in a number of improper servicing practices, including mishandling payments,

failing to correct billing errors, etc. (SAC §f 31, 32.) Plaintiff further alleges that these violations

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of RESPA “caused confusion and financial harm to Plaintiff’ as well as “financial loss, emotional

distress, mental anguish and an increased risk of foreclosure on her home.” (/d. J] 32-33.)

Plaintiff's broad and conclusory allegations of “financial loss,” without any clear

connection to the purported RESPA violations, amount to pleading a “bare violation.” Mo v.

JPMorgan Chase Bank, N.A., No. 14-387, 2021 WL 1608895, at *5 (D.N.J. Apr. 26, 2021).

Indeed, “[i]f a plaintiff simply can allege that failure to respond to a letter caused distress, without

more, any RESPA claim would survive a motion to dismiss.” Giordano, 160 F. Supp. 3d at 781.

Plaintiffs attempt to plead a causal connection between the purported RESPA violations and her

conclusory harm by alleging the violations led to “a denial of credit for the consumer extension of

credit for property or services not-delivered to the consumer or the consumer designee as agreed,”

(SAC 32), is vague, confusing, and insufficient to sustain a claim. Thus, Count II must be

DISMISSED.

iii. Failure to Alege Unlawful Conduct or Contractual Provisions

With respect to Plaintiff's NJCFA claim (Count V), the NJCFA “protects consumers

against unethical practices and dealings in the marketing of merchandise and real estate.” Monarch

Life Ins. Co. v. Senior, No. 06-559, 2006 WL 3825138, at *4 (D.N.J. Dec. 22, 2006). To state an

NICFA claim, a plaintiff must allege “(1) unlawful conduct; (2) an ascertainable loss; and (3) a

causal relationship between the defendants’ unlawful conduct and the plaintiff's ascertainable

loss.” Int’! Union of Operating Eng’rs Loc. No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076,

1086 (N.J. 2007) (cleaned up). An NICFA claim is subject to Federal Rule of Civil Procedure

9(b)’s heightened pleading standard, meaning the claim must “state with particularity the

circumstances constituting fraud or mistake, although intent, knowledge, and other conditions of

a person’s mind may be alleged generally.” Wright v. Ocwen Loan Servicing, LLC, No. 16-8989,

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2019 WL 4013954, at *7 (D.N.J. Aug. 26, 2019) (quoting In re Lipitor Antitrust Litig., 868 F.3d

231, 249 (3d Cir. 2017)).

The SAC fails to allege an NICFA claim with Rule 9(b)’s required specificity.'* Plaintiff

merely alleges:

a. Unconscionable Commercial Practices: Defendants employed practices that were

unethical, oppressive, and unscrupulous in connection with the sale of a consumer

credit transaction for a Money Purchase Mortgage. Specifically, Defendants denial

of credit adverse actions misleading notices forms demanding to repay cash income

for the consumer the extension of credit 11/21/2016 consumer credit transaction.

b. Deception and Fraud: Defendants made false forms and misrepresentations

regarding the consumer extension of credit prepayment by sending notices

demanding repayment of the prepaid credit balance.

c. False Pretense: Defendants used false pretense and deceptive practices to create

a misleading impression about a debt owed and demand cash payments, thereby

inducing Plaintiff to act to her detriment.

(SAC ¥ 47.) These three bases are “completely bereft of any background details concerning how

the supposed fraud was accomplished, who was involved, and when it took place.” Wright, 2019

WL 4013954, at *7; see KZ Ent. LLC vy. Sulekha USA LLC, No. 24-0812, 2024 WL 5244479, at

*6 (D.N.J. Dec. 30, 2024) (dismissing NJCFA claim where plaintiff failed to allege the “‘what,

where, and when’ of any alleged misrepresentation by Defendant’), Thus, Count V is

DISMISSED.

Next, in looking at the TCCWNA, the Court notes it was enacted “to prevent deceptive

practices in consumer contracts by prohibiting the use of illegal terms or warranties in consumer

contracts.” Kent Motor Cars, Inc. v. Reynolds & Reynolds Co., 25 A.3d 1027, 1044 (N.J. 2011).

This claim may also be untimely. The only date identified in Count V is November 21, 2016. (SAC J

47(a)). Plaintiff's initial Complaint was filed over seven years later on November 30, 2023. (ECF No. 1.)

This puts the claim outside NJCFA’s six-year statute of limitations. See N.J.S.A. 2A:14-1. Because it may

well be that Plaintiffs failure to plead a timely claim is a by-product of her lack of specificity under Rule

9(b), Count V is dismissed pursuant to Rule 9(b) rather than on statute of limitations grounds.

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As part of pleading a violation of the TCCWNA (Count VI), a plaintiff must allege, in part, that

the contract “contains a provision that ‘violates any clearly established legal right of a consumer

or responsibility of a seller, lessor, creditor, lender or bailee’ as established by State or Federal

law.’” Truglio v. Planet Fitness, Inc., 360 F. Supp. 3d 274, 278 (D.N.J. 2018) (quoting N.J.S.A.

56:12—15, 12-17)). Here, even presuming the Loan and Note constitute “consumer contracts,”

Plaintiff fails to cite any provision in them that purports to violate Plaintiff's consumer rights.

Plaintiff merely alleges that Defendants violated the TCCWNA by:

a. Inclusion of Prohibited Provisions: Including terms in their consumer contract

that violate the rights of the Plaintiff under the CFA and other applicable laws.

Specifically, the contract application (Credit Agreement) contained the agreement

for compliance with the Equal Credit Opportunity Act.

b. Failure to Provide Required Notices: Failing to provide clear and accurate notices

regarding Plaintiff's rights under the contract and applicable consumer protection

laws.

(SAC J 52(a)-(b)); see Rivera v. Washington Mut. Bank, 637 F. Supp. 2d 256, 268 (D.N.J. 2009)

(dismissing TCCWNA claim where “Plaintiffs have not identified which provisions of either

document allegedly violate a clearly established right of Plaintiff[] or responsibility of [Lender]’);

Martino v. Everhome Mortg., 639 F. Supp. 2d 484, 493 (D.N.J. 2009) (same). Therefore, Count

VI of the SAC must be DISMISSED.

iv. Failure to Allege an Independent Duty Lying in Tort

Turning to Plaintiff's tort claims, the SAC alleges three different forms of negligence

claims: negligence (Count VID), “negligent infliction of mental anguish emotional distress” (Count

VII), and “negligent infliction of emotional distress” (Count X). All three claims fail because the

1S As evidence of Plaintiff's disjomted pleading style, Count VI of the SAC also contains allegations

regarding “Breach of Warranty under the Uniform Commercial Code (UCC) 53.” (SAC □□ 54-57.) Because

it is not clear to the Court what claim Plaintiff is attempting to bring via “UCC 53,” and the claim itself is

not actually a Count in the SAC, the Court declines to address it any further.

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PNC Defendants do not owe Plaintiff a duty lying in tort. See, e.g., Saltiel v. GSI Consultants, Inc.,

788 A.2d 268 (N.J. 2002) (“Under New Jersey law, a tort remedy does not arise from a contractual

relationship unless the breaching party owes an independent duty imposed by law.”)!° In Count X,

Plaintiff alleges in a conclusory fashion that “Defendants owed a duty of care to Plaintiff to avoid

causing emotional harm through negligent actions.” (SAC {| 72(a).) However, the SAC does not

contain any allegations suggesting that the PNC Defendants’ duty to Plaintiff goes beyond

purportedly failing to abide by the terms of the Loan and Note. See Perkins v. Washington Mut.,

FSB, 655 F. Supp. 2d 463, 471 (D.N.J. 2009) (“[Mlere failure to fulfill obligations encompassed

by the parties’ contract, including the implied duty of good faith and fair dealing, is not actionable

in tort.”) Further, “it is axiomatic that a plaintiff may not recover for emotional distress caused by

a defendant’s alleged breach of contract.” Skypala v. Mortg. Elec. Registration Sys., Inc., 055 F.

Supp. 2d 451, 461 (D.N.J. 2009) (dismissing negligence claims against parties to a mortgage and

note because parties “owed no independent duty to Plaintiff’), Therefore, because the PNC

Defendants did not owe an independent duty to Plaintiff, the Court DISMISSES Counts VII, VII,

and X.

vy. Failure to Allege “Extreme and Outrageous Conduct”

Plaintiffs claim for intentional infliction of emotional distress (Count IX) must be

dismissed as well. To allege a claim for ITED, a plaintiff must plead “intentional and outrageous

conduct by the defendant, proximate cause, and distress that is severe.” Taylor v. Metzger, 706

A.2d 685, 694 (N.J. 1998). New Jersey sets a “high bar” for a plaintiff to establish extreme and

outrageous conduct. Peters v. Countrywide Home Loans, Inc., No. 15-6329, 2016 WL 2869059,

‘6 The parties appear to agree that New Jersey law applies to Plaintiffs’ common law claims, and thus, the

Court will not engage in a choice-of-law analysis. (See, e.g., ECF No. 59-1 at 23 (citing New Jersey law in

connection with Plaintiff’s negligence claims); ECF No. 63 at 7 (applying New Jersey law in connection

with Plaintiff’s civil conspiracy claim).)

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at *6 (D.N.J. May 17, 2016). Here, Plaintiff alleges that the “extreme and outrageous conduct”

committed by the PNC Defendants is “debt collection harassment, foreclosure eviction.” (SAC

{| 68.) There are multiple cases in this District dismissing ILED claims alleged on the same grounds,

as “attempting to collect a debt does not rise to a level of outrageous conduct, especially under

New Jersey’s high bar for outrageous behavior.” Diaz v. Bank of New York, No. 15-1954, 2016

WL 111420, at *6 (D.N.J. Jan. 11, 2016); see Peters, 2016 WL 2869059, at *6; see also Francis

v. TD Bank, N.A., No. 12-7753, 2013 WL 4675398 (D.N.J. Aug. 30, 2013). Thus, the Court

DISMISSES Count IX.

vi. Failure to Allege an Underlying Tort

Finally, Plaintiffs civil conspiracy claim (Count IV) must necessarily be dismissed

because a civil conspiracy claim in New Jersey “require[s] the plaintiff to plead a viable underlying

tort claim.” Dill y. Yellin, 725 F. Supp. 3d 471, 484 (D.N.J. 2024); Brown ex rel. Est. of Brown v.

Philip Morris Inc., 228 F. Supp. 2d 506, 517 n.10 (D.N.J. 2002) (“Civil conspiracy is not an

independent cause of action, and conspiracy liability depends on the presence of an underlying

finding of tort liability.”) Because the Court has dismissed all other tort claims plead in the SAC,

there is no underlying claim for Plaintiff’s civil conspiracy claim to stand on. Thus, Count IV is

DISMISSED.

C. FUTILITY OF AMENDMENT

Consideration of Plaintiff's arguments in her opposition briefing (ECF Nos. 63, 64) and

even her sur-reply (ECF No. 66) fails to refute the clear and necessary dismissal of all Counts of

the SAC. Indeed, most of Plaintiff's arguments are simply reiterations of the allegations in the

SAC, (See ECF No. 63 at 7~9.) While the Court is cognizant of Plaintiff's pro se status, a number

of her arguments lack cohesion or clarity, such as:

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No Debt. The Plaintiff delivered the goods ($170,000 Note collateral prepayment)

on 11/21/2016. Evidence performance completed and accepted by way of the

allonge on the Note, is signed by the bank President CEO, J. Kevin Stiff with the

words “Pay To The Order Of’ Gateway Group Mortgage. Entails their contract

terms for their promise to repay principal and interest in the Note, (12 USC 1431a);

English Bills of Exchange 1882(27(1). Plaintiff tender of payment performance

was sent to the Defendant(s) for acceptance to utilize the principal interest balance

to apply to the principal account to setoff.

(ECF No. 66 at *2.) While she attempts to provide the Court with two separate “Affidavit[s] of

Facts,” (ECF Nos. 64, 66) to try to cure some of the specificity issues with the SAC, “i]t is

axiomatic that the complaint may not be amended by the briefs in opposition to a motion to

dismiss.” Commonwealth of Pa. ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (Gd Cir.

1988) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). Thus,

it remains that all Counts of the SAC must be dismissed.

With that said, despite this Court explicitly ordering Plaintiff to file an amended pleading

“that responds to or cures the defects identified’ in the Operative Complaint, (ECF No. 56

(emphasis added)), Plaintiff ignored the Court’s order and instead filed a pleading asserting almost

entirely new claims against almost entirely new Defendants. In the Court’s review of Plaintiff's

five different iterations of a filed or proposed pleading, not one has withstood muster under Rule

8 or Rule 12(b)(6). Plaintiff's chameleon-like approach of changing claims and Defendants with

each amended pleading has not had any success to date, and it is clear to the Court that permitting

Plaintiff to further amend would be futile. See Lake v. Arnold, 232. F.3d 360, 373 (3d Cir. 2000)

(“While [Rule 15(a)] also requires that leave to amend should be ‘freely given’ a district court has

the discretion to deny this request if it is apparent from the record that... the amendment would

be futile.”) Further, amendment would be inequitable to Defendants, particularly the PNC

Defendants, who have been forced to expend time and resources defending against Plaintiff's

repeat, meritless filings. See Grayson v. Mayview State Hosp., 293 F.3d 103, 112-13 (3d Cir, 2002)

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(“{D]ismissals of frivolous claims do not require leave to amend due to the long tradition of

denying leave to amend under Rule 15(a) when amendment is inequitable or futile”); Houser v.

Donahoe, No. 12-1024, 2013 WL 6838699, at *6 (W.D. Pa. Dec. 27, 2013), aff'd sub nom. Houser

v. Postmaster Gen. of U.S., 573 F. App’x 141 (3d Cir, 2014) (affirming the district court’s

dismissal of a case with prejudice and without leave to amend the complaint where it would be

inequitable to require the defendant “who already once has exhaustively and successfully defended

Plaintiff’s grievances” to do so again). Indeed, “all that truly remains of Plaintiff's case is [her]

seemingly unwavering belief that it should and will proceed, if only [s]he can utter the right

combination of words and legal terms.” Houser, 2013 WL 6838699, at *6. Thus, consistent with

the mandate of Rule 15(a), and in the interests of justice, the Court is compelled to DISMISS the

case against the PNC Defendants with prejudice and declines to afford Plaintiff leave to file

another amended pleading with respect to the improperly-joined New Defendants.

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CONCLUSION

For the foregoing reasons, the PNC Defendants’ Motion to Dismiss the Second Amended

Complaint (ECF No. 59) is GRANTED. The case is DISMISSED against the PNC Defendants

with prejudice and dismissed against the New Defendants without prejudice, though without leave

to further amend. An appropriate Order will accompany this Opinion. —~

/ / So ane

/ / / □ □

ROBERT KIRSCH

UNITED STATES DISTRICT JUDGE

Dated: February 11, 2025

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