NOEL L. HILLMAN, District Judge.
In this matter, pro se plaintiffs challenge a mortgage foreclosure. Before the Court is an uncontested motion to dismiss filed by Aurora Commercial Corp., successor entity to defendant Aurora Bank FSB ("Aurora Bank"). For the reasons expressed below, defendant's motion shall be granted.
The underlying facts were set forth at length in the Court's previous Opinion entered on May 2, 2013, and therefore, only those facts pertinent to the present motion will be repeated in this Opinion.
On September 28, 2006, Plaintiffs Jason D. Slimm, Brandi N. Slimm, and Robert H. Obringer executed a promissory note evidencing a $187,267.00 mortgage loan at a six percent (6%) interest rate. Pursuant to the terms of the Note, plaintiffs were required to make a monthly payment of $1,122.76 to Aurora Financial Group, Inc. for principal and interest due on the loan. Shortly after acquisition of the loan, defendants Bank of America, BAC, and ReconTrust began to service the loan.
On March 10, 2010, Bank of America started foreclosure proceedings on plaintiffs' property. On May 21, 2010, the Slimms contacted Bank of America to attempt to work out an arrangement by which they could avoid foreclosure and maintain possession of their home by participating in a loan modification. According to plaintiffs, Bank of America agreed to a modification of their loan agreement pursuant to the federal Home Affordable Modification Program in December of 2010. On February 3, 2012, the Slimms received notification that their loan modification was denied.
Plaintiffs filed a complaint on September 14, 2012, asserting violations of the Fair Debt Collection Practices Act, Fair Credit Reporting Act, New Jersey Deceptive Practices Act, promissory estoppel, Truth in Lending Act, and federal civil Racketeer Influenced and Corrupt Organizations Act.
The Court has federal question subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331. Specifically, this matter arises under 15 U.S.C. §§ 1601, 1692, 1681 and 18 U.S.C. § 1961. The Court exercises supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367.
When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff.
A district court, in weighing a motion to dismiss, asks "`not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'"
Following the
Plaintiffs fail to meet the
Further, the name of the originating lender is "Aurora Financial Group, Inc." Plaintiffs, however, sued "Aurora Bank FSB." Accordingly, the originating lender, Aurora Financial Group, Inc., is not a defendant. Defendant has stated that the sued entity, Aurora Bank FSB, has no affiliation with the originating lender, Aurora Financial Group, Inc., and is a wholly unrelated party.
Therefore, even under the liberal pleading standard applied to pro se parties, plaintiffs have not presented facts that could support a plausible claim for relief against Aurora Bank and, even if they did, plaintiffs sued the incorrect entity.
For the reasons set forth above, defendant Aurora Bank's motion to dismiss will be granted.
An appropriate Order will follow.
However, the Court will not address this argument since defendant did not specifically raise it in its 12(b)(6) motion, but states in a footnote that "[t]o the extent this motion is not granted in its entirety, Aurora hereby preserves its defense of insufficient service of process under Rule 12(b)(5)." According to Fed.R.Civ.P. 12(g), "a party that makes a motion under [Rule 12] must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." Therefore, if defendant wished to raise an insufficient service of process argument, it was incumbent upon it to do so in one motion.