Meeks-Owens v. Indymac Bank, F.S.B.

557 F. Supp. 2d 566 (2008)

Thomasina Yvette MEEKOWENS, Plaintiff,
v.
INDYMAC BANK, F.S.B., Lisa Marie's Appraisal Service, Inc., Lisa Marie Gibson, Mountain Valey Abstract, and Anita M. Peterson, Defendants.

Civil Action No. 3:07-CV-0059.

United States District Court, M.D. Pennsylvania.

April 11, 2008.

John P. O'Boyle, Scranton, PA, for Plaintiff.

Andrew J. Soven, Reed Smith LLP, Philadelphia, PA, Marshall E. Anders, Anders & Masington, L.L.C., Stroudsburg, PA, for Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court are Magistrate Judge Malachy E. Mannion's Report and Recommendation (Doc. 14) and Defendants Mountain Valley Abstract, Inc., ("Mountain Valley") and Anita Peterson's Objections thereto. (Doc. 15). The Magistrate Judge recommended that the Court grant in part and deny in part both Mountain Valley and Peterson's Motion to Dismiss (Doc. 3) and Defendant Indymac Bank, F.S.B. ("Indymac")'s Motion for Judgment on the Pleadings (Doc. 6). Because Plaintiff has stated claims upon which relief can be granted in Counts I, II, and III; because her claims in Counts IV and VI are barred by the applicable statutes of limitations; and because Plaintiff acknowledges that she cannot assert her claim of negligent misrepresentation (Count V) because her losses are solely economic, I will adopt the Magistrate Judge's Report and Recommendation. I will therefore grant Mountain Valley and Peterson's Motion to Dismiss (Doc. 3) as to Counts IV, V, and VI and deny it as to Counts I and III, and I will grant Defendant Indymac's Motion for Judgment on the Pleadings (Doc. 6) as to Counts IV, V, and VI and deny it as to Counts II and III. The Court has jurisdiction over this matter pursuant to 18 U.S.C. § 1964 and 28 U.S.C. §§ 1331 and 1367.

BACKGROUND

Plaintiff Thomasina Yvette Meeks-Owens filed a Complaint (Doc. 1) alleging that Defendants engaged in a predatory lending scheme to induce her to purchase property in Blakeslee, Pennsylvania in January 2001. (Report & Recommendation, Doc. 14, at 1-2.) Specifically, she alleges that Defendant Peterson was president and secretary of Defendant Mountain Valley, a title insurance company chosen by the companies that carried out the sale, the Parisi/Kishbaugh Companies, to be the settlement agent for closing. (Doc. 1 ¶¶ 2, 17, 32, 34.) Plaintiff alleges that Peterson prepared and reviewed all necessary paperwork for Plaintiff and attended the closing on January 11, 2001, but never provided Plaintiff with any closing documents prior to the closing itself and did not direct Plaintiff to complete all necessary documents to secure the mortgage loan. (Id. ¶¶ 18, 33, 35). Plaintiff also alleges that Peterson owed her a fiduciary to duty to protect her interests with regard to fees and paperwork involved in purchasing a home, but that no one ever disclosed or explained to Plaintiff, a first-time home buyer, many of the fees, taxes, and rates she would have to pay, and no one explained to her before closing that she would have to take out a second mortgage. (Id. ¶¶ 95-105.) Also in furtherance of the alleged conspiracy, Peterson did not provide Plaintiff with a copy of the HUD-1 Settlement Sheet at the time of closing, an overt act that permitted Plaintiff to be defrauded. (Id ¶ 118.)

Defendant Indymac, the bank that issued Plaintiffs mortgage loan, knew that the contract price and the mortgaged value of the property substantially exceeded, by more than thirty (30) percent, the market value of the property at time of purchase, Plaintiff alleges. (Id ¶¶ 3, 40, 67.) Further, although Indymac knew that Plaintiff qualified only for a sub-prime mortgage, it "engaged in a scheme to recruit mortgage business from first-time home buyers and minorities by telling these customers that they are receiving conventional loans when in fact these customers are receiving sub-prime mortgages which have market prices and interest rates far in excess of conventional mortgage rates." (Id. ¶¶ 41-43.) Indymac provided Plaintiff with a mortgage loan without investigating her ability to repay the loan, after having received both an incomplete mortgage application and an inflated, "patently defective" appraisal, and after having known since 1999 that homes were being sold at inflated values in the Pocono region. (Id. ¶ 58-59, 107-10.) In furtherance of the alleged conspiracy, Indymac took a number of overt acts, including receiving and adopting a HUD-1 Settlement Sheet that contained false statements; paying consideration to another bank, Nations 1st, for placement of the loan; and providing the mortgage loan without following its normal underwriting and due diligence procedures or confirming the source of the deposit money used in the purchase. (Id ¶¶ 113-18.)

Plaintiff further alleges that she was never advised of the relationships among all the Defendants; that she and the Defendants are persons within the meaning of 18 U.S.C. § 1961(3); that all Defendants constitute an association-in-fact enterprise within the meaning of 18 U.S.C. § 1961(4); that communications between Plaintiff and representatives of Defendants using telephone wires and facsimile transmittal through telephone wires constitute a violation of federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343; and that during the last several years, during which time Plaintiff was defrauded, Defendants committed more than two (2) predicate acts of racketeering activity as defined by 18 U.S.C. § 1961(1) by acting with the Parisi/Kishbaugh Companies to sell homes at inflated values. (Id ¶¶ 50, 125-37.)

Plaintiff brought conspiracy claims under the Racketeering Influenced and Corrupt Organizations Protection act ("RICO") against all Defendants except Indymac in Count I, and against Indymac only in Count II. She also brought, against all Defendants, claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Act ("UTPCPL") (Count III), the Home Ownership and Equity Protection Act ("HOEPA") (Count IV), the Real Estate Settlement Procedures Act ("RESPA") (Count V), and state law claims of negligent misrepresentation (Count VI).

Defendant Indymac filed an Answer (Doc. 2) and a Motion for Judgment on the Pleadings (Doc. 6). Defendants Mountain Valley and Peterson filed a Motion to Dismiss (Doc. 3). Magistrate Judge Mannion issued a Report and Recommendation (Doc. 14) recommending that both motions be granted with respect to the HOEPA, RESPA, and negligent misrepresentation claims (Counts IV, V, and VI) and denied with respect to the RICO conspiracy claims (Count I for Defendants Mountain Valley and Peterson, Count II for Defendant Indymac) and the UTPCPL claims (Count III). (Doc. 14.)

Defendants Mountain Valley and Peterson now object to the denial of their .Motion to Dismiss the RICO and UTPCPL claims against them. (Doc. 15.) No responses to their Objections were filed. This matter is ripe for disposition.

STANDARDS OF REVIEW

I. Review of Magistrate Judge's Report and Recommendation

Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)), provided the objections are both timely, and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D.Pa.1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D.Pa.1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Am, 474 U.S. 140, 154, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D.Pa.1998).

II. Motion to Dismiss

Rule 12(b) (6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. ___, 127 S. Ct. 1955, 1960, 167 L. Ed. 2d 929 (2007), meaning, enough factual allegations, "to raise a reasonable expectation that discovery will reveal evidence of each necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993) (requiring complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) (per curiam). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993), cert, denied, 510 U.S. 1042, 114 S. Ct. 687, 126 L. Ed. 2d 655 (1994). The Court may also consider "undisputedly authentic" documents where the plaintiffs claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir.1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist, 132 F.3d 902, 906 (3d Cir.1997).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). The Court does not consider whether the plaintiff will ultimately prevail. See id. The defendant bears the burden of establishing that the plaintiffs complaint fails to state a claim upon which relief can be granted. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir.2000).

III. Motion for Judgment on the Pleadings

The standards for deciding a motion for judgment on the pleadings pursuant to Rule 12(c) and a motion to dismiss pursuant to Rule 12(b)(6) are identical. Turbe v. Gov't of V.I., 938 F.2d 427, 428 (3d Cir. 1991). Thus, the district court must view the facts and inferences to be drawn from the pleadings in the light most favorable to the non-moving party. Green v. Fund Asset Mgmt, LP., 245 F.3d 214, 220 (3d Cir.2001). "[J]udgment will not be granted 'unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'" Jablonski v. Pan Am. World Ahivays, Inc., 863 F.2d 289, 290 (3d Cir.1988) (quoting Soc'y Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)). Like in a motion to dismiss, a court may consider matters of public record and "undisputedly authentic" documents attached by the moving party if relied upon by the other party. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042, 114 S. Ct. 687, 126 L. Ed. 2d 655 (1994). "Merely attaching documents to a Rule 12(c) motion does not convert it to a motion under Rule 56.... [I]n ruling on the motion a court generally has ``discretion to address evidence outside the complaint.'" Citisteel USA, Inc. v. GE Co., 78 Fed.Appx. 832, 835 (3d Cir.2003) (nonprecedential opinion) (quoting Pry or v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 559 (3d Cir.2002)).

DISCUSSION

I. Contested Recommendations

A. RICO Conspiracy Claim Against Mountain Valley and Peterson (Count I)

Count I of Plaintiffs Complaint (Doc. 1) alleges that Defendants, including Mountain Valley and Peterson, conspired to violate 18 U.S.C. § 1962(c)^[1] Plaintiff thus alleges that the Objecting Defendants violated 18 U.S.C. § 1962(d), under which it is unlawful for any person to conspire to violate subsections (a), (b), or (c). To plead a conspiracy under § 1962(d), a "plaintiff must set forth allegations that address the period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that purpose." Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1166 (3d Cir.1989) (abrogated on other grounds). "Additional elements include agreement to commit predicate acts and knowledge that the acts were part of a pattern of racketeering activity." Id. at 1166-67.

Finally, a claim under § 1962(d) must include allegations that at least one of the alleged co-conspirators violated the relevant predicate subsection, which in this case is § 1962(c). See Lum v. Bank of. America, 361 F.3d 217, 227 n. 5 (3d Cir. 2004) (upholding dismissal of § 1962(d) claim because plaintiff failed to adequately plead any substantive RICO violation) (citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1192 (3d Cir.1993)); see also Pappa v. Unum Life Ins. Co. of Am., No. 3:07-CV-0708, 2008 WL 744820, at *16-17 (M.D.Pa. Mar. 18, 2008) (dismissing claim of conspiracy under § 1962(d) because Compliant failed to allege violation of § 1962(c)). The Complaint need not, however, allege that each Defendant in the conspiracy claim himself violated the underlying substantive provision. See Smith v. Berg, 247 F.3d 532, 537-38 (3d Cir.2001) (citing Beck v. Prupis, 529 U.S. 494, 506-07, 120 S. Ct. 1608, 146 L. Ed. 2d 561 (2000) ("[A] plaintiff could, through a § 1964(c) suit for violation of 1962(d), sue co-conspirators who might not themselves have violated one of the substantive provisions of § 1962.")).

Thus, "a defendant may be held liable for conspiracy to violate section 1962(c) if he knowingly agrees to facilitate a scheme which includes the operation or management of a RICO enterprise." Id. at 538. This is not to say that those who innocently "merely provide services" are liable for conspiracy under § 1962(d); rather, as the Third Circuit Court of Appeals explained, "liability will arise only from services which were purposefully and knowingly directed at facilitating a criminal pattern of racketeering activity." Id. at 537 n. 11.

1. Direct Participation Not Necessary for § 1962(d) Liability

Defendants Mountain Valley and Peterson cite Dongelewicz v. PNC Bank National Association, 104 Fed.Appx. 811, 818 (3d Cir.2004) for the proposition that in order for Plaintiff to plead that they are "co-conspirators in the alleged RICO scheme," "there must be a basis that a coconspirator directly participated in the conspiracy and fraud," (Objections, Doc. 15 113), and then argue that, based on the Complaint's allegations, they "did not directly participate in the fraudulent scheme which forms the basis of the Plaintiffs alleged RICO claim." (Id. ¶ 12.)

The Dongeleuncz opinion discussed this requirement of direct participation, however, only in the context of the § 1962(c) claim in that case. The district court there had granted summary judgment on § 1962(c) claims in favor of a defendant that financed an allegedly fraudulent development scheme because that defendant "did not participate directly in the affairs of the enterprise." See 104 Fed.Appx. at 817 (citing district court's opinion denying motion for reconsideration). The appellate court upheld that decision, agreeing that the evidence did not support a conclusion that the financer-defendant "``conducted' the affairs of any ``enterprise,'" meaning, "participated in the operation of management of the enterprise itself," — a necessary element of a § 1962(c) claim under Reves v. Ernst & Young. See id. at 818 (citing Reves, 507 U.S. 170, 183, 113 S. Ct. 1163, 122 L. Ed. 2d 525 (1993)).

With regard to the § 1962(d) claim, on the other hand, the Third Circuit Court of Appeals clarified that "conspiracy liability under § 1962(d) does not require satisfaction of the Reves test, but is governed by the general principles of criminal conspiracy law, which requires only that the defendant ``share[s] a common purpose' with his co-conspirators and ``knowingly agrees to facilitate a scheme, which includes the operation or management of a RICO enterprise.'" Id. (quoting Smith, 247 F.3d at 538).

2. Allegations Are Sufficiently Particularized

Plaintiffs allegations are sufficiently particularized, as they address "the period of the conspiracy, the object of the conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose." See Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989). Regarding the period of the conspiracy, Plaintiff alleged that the conspiracy began before 2001 and continued beyond the Plaintiffs closing. Regarding the object of the conspiracy, Plaintiff alleged that the Objecting Defendants shared a common purpose with their co-conspirators "to bring the Plaintiff and other first-time home buyers, to the point of settlement for which the Defendants received substantial remuneration in the form of financing charges, servicing fees, and appraisal fees." (Compl., Doc. 1 ¶ 148.)

Regarding certain actions taken by the alleged conspirators to achieve the purpose of the conspiracy, Defendants' argument that they "merely provided a sendee to the Plaintiff (Objections, Doc. 15 ¶ 13) is premature in this Motion to Dismiss, as Plaintiff has alleged they did more. She alleged, indeed, that they "knew of and agreed to the commission of numerous predicate acts by the Parisi/Kishbaugh Companies." (Id. ¶ 149.) Defendants argue that this allegation is merely an unsupported conclusion which should not be accepted as true: the Complaint, they argue, neither alleges which predicate acts they "knew of and agreed to," nor points to any "documents from which it can be concluded that the Objecting Defendants had an agreement with any co-conspirators as to the alleged fraudulent scheme, had knowledge of the alleged RICO scheme or the activities performed in furtherance thereof, let alone the undisclosed predicate acts of mail or wire fraud." (Objections, Doc. 15 ¶ 8, 10, 11.)

As Magistrate Judge Mannion noted, however, the "numerous predicate acts by the Parisi/Kishbaugh Companies," which Defendants allegedly knew of and agreed to, are detailed earlier in the Complaint and incorporated by reference into the allegations against Mountain Valley and Peterson. Those predicate acts include advertisements that used the United States mail and interstate wires, communications with Plaintiff through telephone wires, and communications with Plaintiff through facsimile transmittal through telephone wires, all done in furtherance of a scheme to defraud and which contained numerous false statements. (Id. ¶¶ 36-37.) These acts, done for the purpose of selling homes at inflated values since at least 2001, are acts that Plaintiff alleges the Objecting Defendants knew of and agreed to. Further, Plaintiff specifically alleges that the Objecting Defendants knew of the inflated valuation of the property and knew that it would lead to Plaintiff having to pay higher points on the mortgage. (Id. ¶ 151.)

I agree with the Magistrate Judge that these allegations are sufficient to put the Objecting Defendants on notice of the nature of the claim against them and of the grounds for that claim. Therefore, I will overrule Defendants' Objections and deny their Motion to Dismiss with regard to Count I.

B. UTPCPL Claim Against Mountain Valley and Peterson (Count III)

As I have not dismissed Count I, the Court does not lack subject matter jurisdiction over the state law UTPCPL claim in Count III. I will therefore overrule Defendants' Objections and deny their Motion to Dismiss with regard to Count III.

II. Uncontested Recommendations

No party objected to Magistrate Judge Mannion's recommendations that both motions (Docs. 3 & 6) be granted with respect to the HOEPA (Count IV), RESPA (Count V), and negligent misrepresentation (Count VI) claims against the moving Defendants. The HOEPA claims (Count IV) were dismissed because they are barred by the one (1) year statute of limitations in 15 U.S.C. § 1640(e), and the negligent misrepresentation claims (Count VI) were dismissed because Plaintiff conceded that she cannot assert that claim where her alleged loss is solely economic. (Report & Recommendation, Doc. 14, at 4-5.) The RESPA claims (Count V) were dismissed because Plaintiff conceded that they were brought outside the one (1) year statute of limitations provided in 12 U.S.C. § 2614 and Magistrate Judge Mannion concluded that equitable tolling should not apply because according to Plaintiffs Complaint, she became aware of Defendants' misconduct on or about July 21, 2003. (Id. at 11-12.) Upon review for clear error, I will adopt the Magistrate Judge's recommendations to grant Defendants Mountain Valley and Peterson's Motion to Dismiss and grant Defendant Indymac's Motion for Judgment as a Matter of Law with regard to Counts IV, V, and VI.

Additionally, no party has objected to Magistrate Judge Mannion's recommendations that Indymac's Motion for. Judgment as a Matter of Law be denied with respect the RICO conspiracy claim (Count II) and the UTPCPL claim (Count III). Upon review of those recommendations for plain error or manifest injustice, I will adopt these recommendations and deny Defendant Indymac's Motion for Judgment as a Matter of Law with regard to Counts II and III.

CONCLUSION

After careful consideration, the Court will adopt the Magistrate Judge's Report and Recommendation (Doc. 14). Therefore, Defendants Mountain Valley and Anita Peterson's Motion to Dismiss (Doc. 3) will be granted as to Counts TV, V, and VI and denied as to Counts I and III, and Defendant Indymac's Motion for Judgment on the Pleadings (Doc. 6) will be granted as to Counts IV, V, and VI and denied as to Counts II and III.

An appropriate Order follows.

ORDER

NOW, this 10th day of April, 2008, upon review of Magistrate Judge Malachy E. Mannion's Report and Recommendation (Doc. 14), IT IS HEREBY ORDERED that:

(1) Defendants Mountain Valley Abstract, Inc., and Anita Peterson's Objections to the Magistrate Judge's Report and Recommendation (Doc. 15) are OVERRULED.

(2) The Report and Recommendation (Doc. 14) is ADOPTED.

(3) Defendants Mountain Valley Abstract, Inc., and Anita Peterson's Motion to Dismiss (Doc. 3) is GRANTED in part and DENIED in part, as follows:

(a) The motion is GRANTED as to claims against Mountain Valley and Peterson in Counts IV, V, and VI, and those claims are DISMISSED.

(b) The motion is DENIED as to claims against Mountain Valley and Peterson in Counts I and III, and those claims remain in the case.

(4) Defendant Indymac Bank, F.S.B.'s Motion for Judgment on the Pleadings (Doc. 6) is GRANTED in part and DENIED in part, as follows:

(a) The motion is GRANTED as to claims against Indymac in Counts IV, V, and VI, and those claims are DISMISSED.

(b) The motion is DENIED as to claims against Indymac in Counts II and III, and those claims remain in the case.

REPORT AND RECOMMENDATION

MALACHY E. MANNION, United States Magistrate Judge.

Pending before the court is a motion to dismiss the plaintiffs complaint filed on behalf of defendants Mountain Valley Abstract, Inc., ("Mountain Valley"), and Anita Peterson, ("Peterson"), (Doc. No. 3), and a motion for judgment on the pleadings filed on behalf of defendant Indymac Bank, F.S.B., ("Indymac"), (Doc. No. 6). Based upon the court's review of the complaint, it is recommended that the motions be granted in part and denied in part, as discussed below.

I. PROCEDURAL HISTORY

By way of relevant background, on January 11, 2007, the plaintiff filed a six count complaint against the defendants asserting claims in relation to her purchase of property in Blakeslee, Pennsylvania, in January 2001. Generally, the plaintiff alleges that the defendants engaged in a predatory lending scheme to induce her to purchase the property^[1]. Count I of the complaint alleges a Racketeering Influenced and Corrupt Organization Protection Act, ("RICO"), conspiracy claim against all defendants except defendant Indymac; Count II, against defendant Indymac only, alleges a RICO conspiracy claim; Count III, against all defendants, alleges a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, ("UTPCPL"); Count IV, against all defendants, alleges a violation of the Home Ownership and Equity Protection Act, ("HOEPA"); Count V, against all defendants, alleges a violation of the Real Estate Settlement Procedure Act, ("RESPA"); and Count VI, against all defendants, alleges a state law claim for negligent misrepresentation.

On February 23, 2007, an answer was filed on behalf of defendant Indymac. (Doc. No. 2).

On March 28, 2007, a motion to dismiss the plaintiffs complaint and supporting brief were filed on behalf of defendants Mountain Valley and Peterson. (Doc. Nos. 3 & 4). The plaintiff filed a brief in opposition to the defendants' motion to dismiss on April 12, 2007. (Doc. No. 5).

On May 17, 2007, a motion for judgment on the pleadings was filed on behalf of defendant Indymac, (Doc. No. 6), along with a brief in support thereof, (Doc. No. 7). The plaintiff filed an opposing brief on June 1, 2007. (Doc. No. 10). A reply brief was filed by defendant Indymac on June 6, 2007. (Doc. No. 12).

II. LEGAL STANDARD

The motion to dismiss the plaintiffs complaint filed on behalf of defendants Mountain Valley and Peterson is brought pursuant to the provisions of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can granted. Dismissal should only occur where it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Accordingly, dismissal is appropriate "only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiffs favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Trump Hotels and Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir.1998) (citing ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994)).

In deciding a motion to dismiss, a court should generally consider only the allegations contained in the complaint, the exhibits attached to the complaint, matters of public record, and "undisputably authentic" documents which plaintiff has identified as the basis of his claim. See Pension Benefit Guarantee Corp. v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196 (3d Cir.1993).

It must also be remembered that when considering a motion to dismiss under Rule 12(b)(6), the important inquiry is not whether the plaintiff will ultimately prevail on the merits of his claim, but only whether he is entitled to offer evidence in support of them. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).

The motion filed on behalf of defendant Indymac is brought pursuant to the provisions of Fed.R.Civ.P. 12(c). There is no material difference in the applicable legal standards for dismissing a complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004).

III. DISCUSSION

As an initial matter, the plaintiff concedes that her residential mortgage transaction is not subject to the HOEPA and is otherwise barred by the applicable statute of limitations. (Doc. No. 10, p. 6). Therefore, Count IV of the plaintiffs complaint should be dismissed with prejudice as against all defendants^[2].

The plaintiff also concedes that she cannot assert a negligent misrepresentation claim where her alleged loss is solely economic. (Doc. No. 10, p. 7). Therefore, Count VI of the plaintiffs complaint should also be dismissed with prejudice as against all defendants^[3].

With respect to Count I of the complaint, the RICO conspiracy claim against all defendants except defendant Indymac, defendants Mountain Valley and Peterson argue that the plaintiff has only alleged that they facilitated the conduct of others, not that they were actually a part of the RICO conspiracy. Therefore, these defendants argue that Count I of the plaintiffs complaint should be dismissed with respect to them for failure to state a claim upon which relief can be granted.

Section 1962(d) of RICO makes it "unlawful to conspire to violate [§§ 1962(a), (b) or (c)]." In Smith v. Berg, 247 F.3d 532 (3d Cir.2001), the Third Circuit adopted the Supreme Court's analysis in Salinas v. United States, 522 U.S. 52, 118 S. Ct. 469, 139 L. Ed. 2d 352 (1997), which held that § 1962(c) liability is not a prerequisite to § 1962(d) liability. Rather, conspiracy liability under § 1962(d) is governed by the "general principles of criminal conspiracy law" which requires only that the defendant "share[s] a common purpose" with his co-conspirators and "knowingly agrees to facilitate a scheme, which includes the operation or management of a RICO enterprise." Smith, 247 F.3d at 538.

To be liable under § 1962(d), a defendant need not have violated the substantive provision, so long as some other defendant is liable under the substantive provision and the plaintiffs § 1962(d) allegations against the defendant not liable under the substantive provision are plead with sufficient specificity and particularity. In re Insurance Brokerage Antitrust Litigation, 2007 WL 2892700 *13 (D.N.J. Sept. 28, 2007) (citations omitted).

Here, the plaintiff has alleged that defendants Mountain Valley and Peterson "... knew of and agreed to the commission of numerous predicate acts by [other defendants] ..." beginning prior to 2001 and continuing beyond the plaintiffs closing, and that "[t]he object of the conspiracy was to bring the Plaintiff, and other first-time home buyers, to the point of settlement for which the Defendants received substantial remuneration in the form of finance charges, servicing fees, and appraisal fees." (Doc. No. 1, ¶¶ 147-49). The plaintiff has incorporated by reference the alleged overt acts of the other defendants of which these defendants allegedly knew of and agreed.

The question of whether the plaintiff can prove the defendants' knowing involvement in the overall RICO enterprise is not a matter for consideration at the dismissal stage. Instead, the only issue before the court is whether the plaintiff has presented sufficient allegations to proceed. Accepting the allegations of the plaintiffs complaint as true and drawing all reasonable inferences from those allegations in the plaintiffs favor, the plaintiff has adequately stated a § 1962(d) claim against defendants Mountain and Peterson. Therefore, the motion to dismiss filed on behalf of defendants Mountain and Peterson should be denied on this basis^[4].

With respect to Count II of the complaint, defendant Indymac also argues that the plaintiff has not adequately alleged a RICO conspiracy claim. Relying on Dongelewicz v. PNC Bank Nat. Ass'n, 104 Fed.Appx. 811 (3d Cir.2004), and urging the court not to follow Middle District decisions on similar claims, (i.e. Wilson and Gaines, as referenced above), defendant Indymac argues that the plaintiff has only alleged that it financed the transaction, which is insufficient to establish that it agreed to commit predicate acts or that it knew that the predicate acts were part of racketeering activity.

With respect to this argument, the court in Wilson and Gaines, considered the Third Circuit's decision in Dongelewicz and found the allegations against Indymac in those complaints, which are very similar to the allegations made in the instant complaint, to be sufficient to survive a motion to dismiss. Here, with respect to defendant Indymac, the plaintiff alleges that it "... had knowledge of and involvement in the conspiracy as far back as 1999 up until at least February 2001 ..." and that the "[o]bject of the conspiracy was to bring the Plaintiff to the point of settlement for which the Defendants, and others, would receive substantial remuneration in the form of sale proceeds, settlement fees, and debt service." The plaintiff further alleges that defendant Indymac "... knew and/or agreed to the commission of numerous predicate acts by the other Defendants..." and that it "... conspired with the other Defendants ... to violate the provisions of 18 U.S.C. § 1962(c)." The plaintiff incorporates by reference the predicate acts alleged to have been committed by the other defendants, as well as the overt acts of defendant Indymac. (Doc. No. 1.¶¶ 157, 159, 161-64).

As discussed with respect to defendants Mountain Valley and Peterson, whether the plaintiff can actually prove her claim is not a matter for consideration at this stage of the proceedings. She has, for purposes of the instant motion, sufficiently alleged a claim for conspiracy pursuant to 18 U.S.C. § 1962(d). Therefore, defendant Indymac's motion for judgment on the pleadings should be denied with respect to this claim^[5].

With respect to Count III of the complaint, the. plaintiff's UTPCPL claim against all defendants, defendant Indymac initially argues that the plaintiff has failed to attribute any specific unfair or deceptive act or practice to Indymac and has not alleged that defendant Indymac engaged in any specific wrongful conduct. Instead, defendant Indymac argues that the plaintiff attempts to generally group it with the other defendants that allegedly engaged in misconduct.

The Pennsylvania "Supreme Court has determined that the Consumer Protection Law must be liberally construed." Wright v. North Am. Life Assurance Co., 372 Pa.Super. 272, 539 A.2d 434, 438, (1988) (interpreting § 201-2(4) (xvii), which is now 2(4)(xxi)).

Upon review of the plaintiffs complaint, the plaintiff alleges that defendant Indymac ignored signs of inflated appraisal in Monroe County; it continued to provide funding even though it knew that inflated appraisals were being used; it did hot follow its own underwriting procedures; and it accepted HUD-1 Settlement Sheets which had questionable,: if not fraudulent, information. (Doc. No. 1, ¶¶ 110-116). These allegations were incorporated into the plaintiffs UTPCPL claim against defendant Indymac. See ¶ 169. Based upon these allegations, the court finds that the plaintiff has alleged specific claims of wrongful conduct on the part of Indymac. Therefore, defendant Indymac's motion for judgment on the pleadings should be denied on this basis.

Defendant Indymac also argues that in order to succeed on her UTPCPL claim under the "catch-all" provision, the plaintiff must establish: "(1) a misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance by the party defrauded upon the misrepresentation; and (5) damages to the party defrauded as a proximate result." See Fisher v. Aetna Life Insurance and Annuity Co., 39 F. Supp. 2d 508 (M.D.Pa.1998), aff'd 176 F.3d 472 (3d Cir.), cert, denied 528 U.S. 816, 120 S. Ct. 54, 145 L. Ed. 2d 48 (1999). Defendant Indymac argues that the plaintiff has failed to sufficiently allege the first element, in that she did not allege that defendant Indymac made a false statement to her. However, the first element, misrepresentation, may include either a false representation or concealment of information. Piper v. American Nat. Life Ins. Co. of Texas, 228 F. Supp. 2d 553 (M.D.Pa., 2002). Because the plaintiff need not allege that defendant Indymac made a false statement to her, defendant Indymac's motion for judgment on the pleadings should be denied on this basis as well^[6].

Finally, with respect to the plaintiffs UTPCPL claim, defendants Mountain Valley and Peterson argue in their motion to dismiss that the court should decline to exercise supplemental jurisdiction over this claim. This argument, however, is premised upon an assumption that the plaintiff could not present a viable federal law claim. Because this court finds that the plaintiff has viable federal law claims and is recommending that she be permitted to proceed with those claims, as discussed herein, the court further recommends that the plaintiff be permitted to proceed with the related state law claim. Therefore, it is recommended that the motion to dismiss filed on behalf of defendants Mountain Valley and Peterson be denied on this basis.

With respect to Count V of the complaint, the plaintiffs RE SPA claim, defendant Indymac argues that this claim is barred by the applicable statute of limitations. The plaintiff apparently concedes that her RESPA claim has been brought outside of the one year statute of limitations provided for in 12 U.S.C. § 2614, but argues that equitable tolling should apply.

Equitable tolling stops "the statute of limitations from running when the date on which the claim accrued has already passed." Lake v. Arnold 232 F.3d 360, 370 (3d Cir.2000). This doctrine allows a court to "extend a statute of limitations on a case-by-case basis to prevent inequity." Colletti v. N.J. Transit Corp., 50 Fed.Appx. 513 (3d Cir.2002). Equitable tolling is appropriate in three situations: (1) when the defendant has actively misled the plaintiff respecting the facts which comprise the plaintiffs cause of action; (2) when the plaintiff in some extraordinary way has been prevented from asserting his rights; and (3) when the plaintiff has timely asserted his rights in the wrong forum. U.S. v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (quoting Kocian v. Getty Refining & Mktg. Co., 707 F.2d 748, 753 (3d. Cir.1983)). In addition, a plaintiff must have "exercised reasonable diligence in investigating and bringing the claims." Miller v. New Jersey Dep't of Corrections, 145 F.3d 616, 618-19 (3d Cir.1998).

Here, the plaintiff asserts that she was actively misled by the defendants with respect to the alleged conspiracy in place and that "[i]t wasn't until the scheme that the Defendants perpetrated on others came to light that [she] reviewed her own situation." The plaintiff alleges in her complaint, however, that she was aware of the defendants' misconduct on or about July 21, 2003, when an appraisal reflecting what she believes was an accurate property value was obtained. (Doc. No. 1, ¶¶ 122, 139). To the extent that the plaintiff learned of the defendants' misconduct in July of 2003, the statute of limitations would have run in July of 2004. The plaintiff did not initiate the instant action until January 2007. Therefore, the plaintiffs RESPA claim is time-barred, and the plaintiffs complaint should be dismissed with respect to all defendants^[7].

IV. CONCLUSION

Based upon the foregoing, IT IS RECOMMENDED THAT:

(1) (A) the motion to dismiss the plaintiffs complaint filed on behalf of defendants Mountain Valley and Peterson, (Doc. No. 3), be GRANTED with respect to the following:

(i) Count IV, the plaintiffs HOEPA claim;

(ii) Count VI, the plaintiffs negligent misrepresentation claim; and

(iii) Count V, the plaintiffs RESPA claim;

(B) the motion to dismiss the plaintiff's complaint filed on behalf of defendants Mountain Valley and Peterson, (Doc. No. 3), be DENIED with respect to the following:

(i) Count I, the plaintiff's RICO conspiracy claim; and

(ii) Count III, the plaintiff's UTPCPL claim;

(2) (A) the motion for judgment on the pleadings filed on behalf of defendant Indymac, (Doc. No. 6), be GRANTED with respect to the following:

(i) Count IV, the plaintiff's HOEPA claim;

(ii) Count VI, the plaintiffs negligent misrepresentation claim; and

(iii) Count V, the plaintiff's RESPA claim;

(B) the motion for judgment on the pleadings filed on behalf of defendant Indymac, (Doc. No. 6), be DENIED with respect to the following:

(i) Count II, the plaintiff's RICO conspiracy claim; and

(ii) Count III, the plaintiff's UTPCPL claim.

March 3, 2008.

NOTES

[1] 18 U.S.C. § 1962(c) provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

[1] The court notes that the instant complaint is factually similar to several others which have been filed against some of the same defendants in the Middle District. See Wilson v. Parisi, et al, Civil Action No. 3:04-1737 (Vanaskie, J.); Alvarez v. Parisi, Civil Action No. 3:05-0624 (Vanaskie, J.); Vicuna v. Parisi, Civil Action No. 3:05-1515 (Vanaskie, J.); Gaines v. Parish Civil Action No. 3:06-0074 (Vanaskie, J.).

[2] The plaintiff has indicated only that she would voluntarily withdraw this claim with respect to defendant IndyMac. However, for the same reasons that the claim is barred with respect to defendant Indymac, it is barred with respect to the other defendants.

[3] See n. 2.

[4] The court notes that this finding is consistent with the opinions of Judge Vanaskie in the similar actions filed in Wilson v. Parisi, Civil Action No. 3:04-1737 and Gaines v. Parisi, Civil Action No. 3:06-0074, as referenced above. See n. 1.

[5] See n. 4.

[6] Even to the extent that the court agrees with defendant Indymac that the plaintiff has failed to adequately plead a UTPCPL claim, the proper remedy is to grant the plaintiff leave to file an amended complaint. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) ("[I]f a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a curative amendment, unless an amendment would be inequitable or futile.")

[7] Defendants Mountain Valley and Peterson have not argued that the plaintiff's RESPA claim is barred by the applicable statute of limitations, but argue that the claim fails on the merits. Defendant Indymac also argues, in the alternative, that the plaintiff's RESPA claim fails on the merits. However, because the court finds that the claim is barfed by the applicable statute of limitations, the merits of the claim will not be reviewed herein.