Mark Carrier v. Bank of America NA , 592 F. App'x 135 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1791
_____________
MARK CARRIER; RUTH CARRIER,
Appellants
v.
BANK OF AMERICA NA, F/K/A and as Successor to
Countrywide Home Loan Services, L.P.;
COUNTRYWIDE FINANCIAL CORPORATION; JOHN DOES (1-10);
JANE DOES (1-10); ABC CORP. (1-10); XYX, INC. (1-10);
RONALD P. STALLER, d/b/a Brigantine Mortgage
_____________
No. 14-1792
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MARY E. DEBONIS,
Appellant
v.
BANK OF AMERICA NA, F/K/A and as Successor to Countrywide
Home Loan Services, L.P. and Countrywide Financial Corporation;
FIRST PLATINUM CAPITAL CORPORATION; JOHN DOE (1-10);
JANE DOE (1-10); ABC CORP. (1-10); XYZ, INC. (1-10)
_____________
No. 14-1793
_____________
ARMANDO GARCIA,
Appellant
v.
BANK OF AMERICA NA, as Successor to
F/K/A Countrywide Home Loan Services, L.P.;
COUNTRYWIDE FINANCIAL CORPORATION;
COUNTRYWIDE HOME LOANS, INC.; JOHN DOE (1-10);
JANE DOE (1-10); ABC CORP. (1-10); XYZ, INC. (1-10)
_____________
No. 14-1794
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KRZYSZTOF KOWALCZYK; DOROTA ROGULSKA, H/W,
Appellants
v.
BANK OF AMERICA NA, F/K/A and as Successor to Countrywide
Home Loan Services, L.P. and Countrywide Financial Corporation;
AMERICAN MORTGAGE, INC.; JOHN DOE (1-10);
JANE DOE (1-10); ABC CORP. (1-10); XYZ, INC. (1-10)
On Appeal from the United States District Court
for the District of New Jersey
District Court Nos. 1-12-cv-00104; 1-12-cv-07945; 1-12-cv-07946; 1-12-cv-07947
District Judge: The Honorable Renee M. Bumb
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 21, 2015
Before: RENDELL, SMITH, and KRAUSE, Circuit Judges
(Filed: February 3, 2015)
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OPINION*
_____________________
SMITH, Circuit Judge.
In these nominally separate cases stemming from “substantially identical”
Complaints, Plaintiffs have sued named Defendants Bank of America and its
predecessor Countrywide for providing Plaintiffs with “doomed and toxic”
mortgages. Plaintiffs seek to maintain causes of action for fraud (specifically
common law fraud, fraudulent inducement and violations of the New Jersey
Consumer Fraud Act), breach of the duty of good faith and fair dealing, negligent
misrepresentation, civil conspiracy and violations of both the New Jersey and
federal Racketeer Influenced and Corrupt Organization (RICO) statutes. On
January 31, 2014, the District Court granted Defendants’ motions to dismiss with
respect to all causes of action. Carrier v. Bank of Am., N.A., No. 12-104, 2014 WL
356219 (D.N.J. Jan. 31, 2014). We will affirm.
Plaintiffs ostensibly challenge each dismissal, but by repeatedly declining to
contest critical aspects of the District Court’s reasoning, Plaintiffs have
functionally conceded the entire case. These de facto concessions include that: (i)
the RICO causes of action were untimely, as Plaintiffs have not challenged the
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
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District Court’s determination as to when they reasonably should have known of
their injuries; and (ii) Plaintiffs failed to state a cause of action under the New
Jersey Consumer Fraud Act, as Plaintiffs have not challenged the District Court’s
determination that they failed to allege an “ascertainable loss.”
Relatedly, without considering statements the District Court found of no
legal consequence (determinations not challenged here), Plaintiffs do not point to
any allegations made with sufficient detail, with respect to their fraud, fraudulent
inducement and negligent misrepresentation causes of action, to survive the
pleadings standards under either Fed. R. Civ. P. 9(b) or Ashcroft v. Iqbal, 556 U.S.
662 (2009). The District Court did not consider: (i) statements made by brokers
because it determined that they were not imputable to Defendants, as the brokers
were not Defendants’ agents; and (ii) specific misrepresentations alleged in
connection with Truth in Lending Act (“TILA”) disclosures because it determined
that the disclosures could not be considered as part of state-law claims “because
such assertions constitute claims properly brought under TILA.”1 Id. at *6 n.8. As
Plaintiffs have not challenged the District Court’s determinations with respect to
the existence of an agency relationship or the relevance of TILA disclosures, we
will not disturb those determinations.
Moreover, with respect to Plaintiffs’ duty of good faith and fair dealing
1
No claims were brought under TILA.
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claims, the District Court stated that “Plaintiffs’ . . . brief . . . does little to clarify
the basis of their claim . . . [b]eyond conclusory allegations.” Carrier, 2014 WL
356219, at *6-7. Despite ample opportunities, Plaintiffs have at no stage in this
litigation attempted to explain how Defendants’ alleged conduct “destroy[ed] or
injur[ed] the right of [Plaintiffs] to receive the fruits of the contract,” Sons of
Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997).
Finally, although the District Court concluded that Plaintiffs’ allegations in
support of their civil conspiracy claims were “bare . . . legal conclusions
unsubstantiated by facts in support of the alleged ‘agreement’ or ‘common
design,’” Carrier, 2014 WL 356219, at *9, rather than point to any specific
allegations on appeal, Plaintiffs simply restate the elements that the District Court
recited and assert that they are satisfied. Such either unfounded or indolent
contentions leave us unable to conclude that the District Court erred.
We further note that the District Court, having informed Plaintiffs of their
pleading deficiencies, sua sponte gave them an opportunity to file a Second
Amended Complaint. But rather than flesh out their allegations, Plaintiffs opted to
appeal instead. Plaintiffs’ staunch refusal to respond to the basic details of the
District Court’s decision—either before the District Court or on appeal—compels
us to affirm the District Court’s dismissal of their claims.
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