We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP. In Linda Mehnert v. U.S. Bank National Association, as Trustee For Prof-2013-S3 Remic Trust VII, et al, United States District Court, D. New Jersey, 2018 WL 1942523, Defendant’s motion to dismiss was granted by the Court.
The Plaintiff Linda Mehnert sought damages from the Defendant related to a 2016 state court foreclosure Judgment on her home. The matter came before the Court based on the defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim.
In deciding a Rule 12(b)(1) motion for lack of subject matter jurisdiction, the Court must determine whether the party presents a facial or factual attack because the distinction determined how the pleading is reviewed. A facial attack “contests the sufficiency of the complaint because of a defect on its face”, and a factual attack “asserts that the factual underpinnings of the basis for jurisdiction fails to comport with the jurisdictional prerequisites.” To establish standing a plaintiff must satisfy a three-prong test: 1. An injury in fact; 2. Causations; 3. Redressability of the injury by a favorable decision by the Court. Here, the Court would liberally construct the test based upon a pro-se plaintiff.
Plaintiff’s claim overlapped with the state court judgment. The Rooker-Feldman doctrine precluded the Court from hearing the matter (as a direct challenge of the state foreclosure proceeding). The Court moved on to failure to state a claim. The Court found that the Plaintiff failed to plausibly please the amount of damages or the necessary causal link to the damages.
As to the FDCPA claims, plaintiff failed to provide plausible facts demonstrating Defendant was a debt collector as opposed to a creditor. In fact, the complaint appeared to communicate that defendant was a creditor and thus the FDCPA did not apply. The plaintiff also failed to sufficiently identify her ascertainable loss. One would presume, that the loss of the home in foreclosure was the intent. However, Courts have found that a mortgagor who is not required to pay more than their legal obligation has not sustained any ascertainable loss. As to good faith and fair dealing, the Plaintiff’s allegations were conclusory and were unsupported.
A great job by Adam Friedman, Esq.! For more information regarding this case, please contact Deborah Gallo, Director of Operations at [email protected].