RENÉE MARIE BUMB, District Judge.
Pro se plaintiff, Sandra Lopaz, brings this suit asserting various claims against the United States Government and its officers. Lopaz alleges that Defendants, the U.S. Department of Housing and Urban Development, "HUD"; Ben Carson, Secretary of HUD; John Lucey, Director, Federal Housing Administration ("FHA") Office of Asset Sales; and Brian Montgomery, FHA Commissioner, in their official capacities, violated the law when HUD sold Lopaz's FHA-insured mortgage loan and failed to engage in formal rulemaking for the program under which the loan was sold.
Defendants move to dismiss the Complaint. For the reasons stated herein, the motion will be granted.
The Complaint alleges the following facts. "On November 13, 2008 Plaintiff executed an FHA Note and Mortgage in the amount of $154,660.00." (Compl. ¶ 10) "On January 1, 2011 JP Morgan Chase declared the Note and Mortgage defaulted." (Id. ¶ 12)
"Sometime in 2013 Plaintiff's Note and Mortgage were included in HUD's [Single Family Loan Sale program] 2014-1, Loan Pool 102. . . . Plaintiff's personal information (social security number, date of birth) were made available to `qualifying bidders' on a website." (Compl. ¶ 13)
"On December 12, 2013 JP Morgan Chase assigned the Plaintiff's Mortgage to the Secretary of HUD." (Compl. ¶ 18) Plaintiff's mortgage was then assigned to several different banks over the course of 2014, 2015, and 2016. (Compl. ¶ 21, 25, 26) "On January 29, 2018 the Sheriff of Burlington County, New Jersey caused a Sheriff's Deed to be filed conveying Plaintiff's home to U.S. Bank National Association." (Compl. ¶ 30)
The Complaint asserts five counts:
(1) Violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551
(2) "Negligence"— among other things, Plaintiff alleges that she "was injured when her loan was sold to an entity that had no interest in stabilizing neighborhoods." (Compl. ¶ 43);
(3) "Discrimination"— HUD allegedly "discriminated against the Plaintiff by selling Plaintiff's Note and Mortgage to a for profit entity while it sold other Notes and Mortgages to non-profits who had the objective to stabilize neighborhoods." (Compl. ¶ 46)
(4) Violation of "Unfair, Deceptive, Abusive Acts or Practices"/ the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1 to -20. — among other things, HUD's SFLS Program is allegedly "unfair as homeowners are not given the opportunity to dispute that all FHA loss mitigation has been exhausted." (Compl. ¶ 48)
(5) "Tort"— Plaintiff "incorporates the allegations in Counts 1-4, as if fully set forth herein." (Compl. ¶ 53)
Plaintiff seeks only two forms of relief: an injunction "direct[ing] HUD to cease and desist all future loan sales until it complies with the Administrative Procedure Act," and "the sum certain of $119,500," which was the assessed value of Plaintiff's house in 2014. (Compl. ¶ 19 and "Prayer for Relief" ¶ c.) Notably, Plaintiff also requests "[a]ppli[cation] [of] the doctrine of equitable tolling to the statute of limitations to run from the date of HUD's Inspector General Report July 14, 2017." (Id. ¶ a.)
To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
In reviewing a plaintiff's allegations, the district court "must accept as true all well-pled factual allegations as well as all reasonable inferences that can be drawn from them, and construe those allegations in the light most favorable to the plaintiff."
Defendants assert the APA claim is barred by the six-year statute of limitations applicable to APA claims against the United States.
"Equitable tolling is extended only sparingly, in circumstances `(1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.'"
Accordingly, Defendants' Motion to Dismiss will be granted as to the APA claim, Count 1 of the Complaint.
Defendants also assert that the tort claims are untimely. Under the Federal Tort Claims Act, a notice of claim must be filed within two years of claim accrual. 28 U.S.C. § 2401(b).
Accordingly, Defendants' Motion to Dismiss will be granted as to the tort claims, Counts 2, 4, and 5 of the Complaint.
Lastly, Plaintiff's discrimination claim is exceedingly vague. Plaintiff does not identify any statute or constitutional provision that she asserts was violated. Based on the facts pled, the Court cannot discern any basis from which to plausibly conclude that Plaintiff asserts a claim based on race, gender, or any other protected characteristic that would receive protection under a specific federal statute. Thus, the Court construes Plaintiff's "discrimination" claim as asserting an equal protection claim under the United States Constitution.
Defendants correctly observe, however, that the United States has not waived its sovereign immunity to such claims.
To the extent the Complaint can be construed as asserting
Moreover, the Court will not grant leave to amend the discrimination claim because amendment would be futile.
Accordingly, Defendants' Motion to Dismiss will be granted as to the discrimination claim, Count 3.
For the foregoing reasons, Defendants' Motion to Dismiss will be granted. An appropriate Order shall issue on this date.