NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-3419
_____________
RONALD DELUCA; PHYLLIS DELUCA, their heirs, devisees, and personal
representatives or any of their successors in right, title and interest,
Appellants
v.
CITIMORTGAGE; QUICKEN LOANS, INC; SHARON SON; TITLE SOURCE INC;
JANE DOES; JOHN DOES, 1-10 AND ABC CORPORATIONS 1-10
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-11-cv-03634)
District Judge: Honorable Stanley R. Chesler
ARGUED JUNE 10, 2013
BEFORE: McKEE, Chief Judge, AMBRO, and NYGAARD, Circuit Judges
(Filed: October 11, 2013)
Joseph A. Chang, Esq. [Argued]
951 Madison Avenue
Paterson, NJ 07501
Counsel for Appellants
Joshua N. Howley, Esq. [Argued]
Jonathan S. Jemison, Esq.
Sills, Cummis & Gross
One Riverfront Plaza
Newark, NJ 07102
Counsel for Appellee Citimortgage
Martin S. Frenkel, Esq.
David E. Hart, Esq. [Argued]
Mark E. Plaza, Esq.
Maddin, Hauser, Wartell, Roth & Heller
28400 Northwestern Highway
Third Floor
Southfield, MI 48034
Michael S. Meisel, Esq.
Michael R. Yellin, Esq.
Cole Schotz
25 Main Street – Court Plaza North
P. O. Box 800
Hackensack, NJ 07601
Counsel for Appellees Quicken Loans, Inc. and Sharon Son
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OPINION OF THE COURT
__________
NYGAARD, Circuit Judge.
Ronald and Phyllis DeLuca assert numerous claims arising from loans originated
by Quicken Loans, Inc., and subsequently serviced by Citimortgage, which refinanced
the DeLucas’ debt. They appeal the District Court’s Order granting Defendants’ motions
for dismissal, pursuant to Federal Rule of Civil Procedure 12(b)(6). We will affirm.
As this opinion has no precedential value, we write only for the parties.1 We
review de novo a motion to dismiss arising under Rule 12(b)(6). A complaint’s
‘“[f]actual allegations must be enough to raise a right to relief above the speculative
1
Defendants removed this case on federal question jurisdiction. The federal claims were
dismissed and are not appealed. Nonetheless, the state law claims against Quicken Loans
are now time barred. We retain jurisdiction on this basis. Hedges v. Musco, 204 F.3d
109, 123 (3d Cir. 2000).
2
level.’” Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007)). Plaintiffs asserting fraud have the
additional burden of stating their claims with particularity. Federal Rule of Civil
Procedure 9(b). The DeLucas contended that, as to their mortgage loans originated in
2007, the conduct of Quicken Loans, Inc., Sharon Son, and Title Source Inc. violated the
New Jersey Consumer Fraud Act (N.J.S.A. 56:8-2).2 The DeLucas alleged deceptive
practices by making conclusory allegations about “high pressure tactics” and “rushing the
closing.” They said that Appellees’ conduct prevented them from asking questions about
the loan. When pressed at oral argument to provide more detail, they could not. They
also could not provide any examples of inquiries that were actually stifled. Moreover, the
DeLucas pleaded that the deceptions caused them to receive unfavorable loans, but they
failed to provide any details about the loans. They merely pointed to the default as de
facto support for this claim.
The District Court determined that the DeLucas failed to provide even a colorable
factual basis for their allegations of Appellees’ deceptive practices and unfavorable loans.
We agree with the District Court’s conclusions. Even after amendment, the complaint is
still fatally vague about the specific acts that constituted fraud. It does not rise to the
level of specificity required under Rule 9(b). The DeLucas also did not assert any facts
to ground a bona fide causal relationship between this conduct and an actual loss. Merely
contending that their default, by itself, sufficiently grounds a causal link to the
2
A claim under this statute requires the plaintiff to allege unlawful conduct, an
ascertainable loss, and a causal relationship between the conduct and the loss. Bosland v.
Warnock Dodge, Inc., 964 A.2D 741, 749 (N.J. 2009).
3
misconduct they allege falls far short of the pleading standards. This pleading deficiency
was exacerbated by their admissions in the complaint that they were in financial trouble
before acquiring the loan. For these reasons we will affirm the District Court’s dismissal
of the causes against Quicken Loans, Sharon Son and Title Source Inc.
The DeLucas also alleged numerous claims against Citimortgage.3 They contend
that an unnamed Citimortgage representative, on an unspecified date, advised them to
default on their mortgage loans to receive a loan modification under HAMP. They state
that, after they defaulted, Citimortgage engaged in elusive tactics and ultimately failed to
fulfill its promise of giving them a modification. The tactics included requiring the
DeLucas to navigate a complicated phone-tree to reach customer service, and using
multiple customer service agents to communicate with them during the modification
process. The DeLucas alleged that this conduct violated the New Jersey Consumer Fraud
Act, and made Citimortgage liable for common law fraud, breach of covenant of good
faith and fair dealing, and promissory estoppel.
On the claim of breach, the only contract extant was the Quicken mortgage loans
serviced by Citimortgage. The DeLucas acknowledge that Citimortgage was under no
contractual duty to modify the mortgage. The District Court ruled that the DeLucas’
pleading failed to provide a reasonable basis to connect Citimortgage’s conduct—which
3
The District Court concluded that the claims against Citimortgage are “inextricably
linked” to provisions under the United States Department of the Treasury’s Home
Affordable Modification Program (HAMP) and, as a result, are preempted. We do not
consider this issue because we conclude that the claims were properly dismissed under
the District Court’s alternative ruling that the DeLucas failed to state claims against
Citimortgage on which relief can be granted.
4
arose in the context of assistance it gave to the DeLucas in their attempt to get a mortgage
modification—with any breach of any actual duty. We agree.
As to their assertions of consumer fraud, common law fraud, and promissory
estoppel, the Trial Period Plan documents underlying the allegations provide dispositive
evidence contradicting the assertion that Citimortgage falsely promised the DeLucas a
loan modification if they defaulted on their loans.4 The District Court noted that these
documents, signed by the DeLucas to obtain a modification, specify that any offer for a
permanent modification by Citimortgage was subject to qualifications. This negated any
assertion of their reasonable reliance. It also broke any causal connection between
alleged misrepresentations and any loss allegedly suffered by the DeLucas. The District
Court correctly ruled that the consumer fraud, common law fraud and promissory
estoppel causes should be dismissed for failure to state a claim.
For these reasons, we will affirm the Order of the District Court.
4
The elements of common law fraud are: “(1) a material misrepresentation of a presently
existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an
intention that the other person rely on it; (4) reasonable reliance thereon by the other
person; and (5) resulting damages.” Gennari v. Weichert Co. Realtors, 691 A.2d 350,
367 (N.J. 1997). The elements of promissory estoppel are: “(1) a clear and definite
promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable
reliance; and (4) definite and substantial detriment.” Toll Bros., Inc. v. Board of Chosen
Freeholders of Burlington, 944 A.2d 1, 19 (N.J. 2008).
5