Jennifer Gilarmo v. US Bank NA as Trustee for CSAB , 643 F. App'x 97 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-3321
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JENNIFER B. GILARMO,
Appellant
v.
US BANK NA AS TRUSTEE FOR CSAB MORTGAGE
BACKED TRUST 2006-1; WELLS FARGO
BANK NA AS SERVICER; MORTGAGE ELECTRONIC
REGISTRATION SYSTEM; DOES 1-10, Inclusive
__________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 3-14-cv-08121)
District Judge: Honorable Peter G. Sheridan
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 1, 2016
Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges
(Opinion filed: February 5, 2016)
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OPINION*
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PER CURIAM
Jennifer B. Gilarmo appeals from an order of the District Court dismissing her
complaint. For the reasons that follow, we will affirm.
Gilarmo obtained a mortgage loan in January of 2006 from First Laridian
Mortgage D/B/A First Lenders Mortgage Company in the sum of $193,600 to refinance a
residential property located at 28 Wedgeport Drive in Toms River, New Jersey.
Mortgage Electronic Registration Systems, Inc., as nominee for Laridian Mortgage, its
successors and assigns, assigned the mortgage to U.S. Bank National Association, as
Trustee for CSAB Mortgage-Backed Pass-Through Certificates, Series 2006-1. A
Corrective Assignment of Mortgage correcting First Laridian’s name was subsequently
executed. Then, in November of 2013, a Corporate Assignment of Mortgage was
executed; U.S. Bank National Association, as Trustee for CSAB Mortgage-Backed Pass-
Through Certificates, Series 2006-1, assigned the mortgage to U.S. Bank National
Association, as Trustee for Credit Suisse First Boston Mortgage Securities Corp., CSAB
Mortgage Backed Pass-Through Certificates, Series 2006-1. All assignments were duly
recorded in the office of the Clerk of Ocean County.
Meanwhile, Gilarmo defaulted on her repayment obligations and a foreclosure suit
was filed in the Superior Court of New Jersey, Ocean County by U.S. Bank, alleging that
the loan was in default for the November 1, 2007 payment and all subsequent payments.
Final Judgment and a Writ of Execution were entered in state court on January 7, 2015
after Gilarmo failed to appear and defend. She did not seek to appeal the foreclosure
judgment in state court.
On March 4, 2015, Gilarmo filed a civil action pro se in the United States District
Court for the District of New Jersey, against U.S. Bank, Wells Fargo Bank, and Mortgage
Electronic Registration Systems, to quiet title. She also alleged violations of the Real
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Estate Settlement and Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., and the
Home Ownership Equity Partnership Act (“HOEPA”), 15 U.S.C. § 1602, and she
asserted tort and contract claims. She argued in the main that U.S. Bank lacked standing
when it sought foreclosure in state court because of improprieties in connection with the
securitization of the loan. She attached to her complaint a “Property Securitization
Analysis Report” prepared for her by “Certified Forensic Loan Auditors, LLC” of
California, which traced the ownership history of her Mortgage and concluded that her
Note was converted into stock, that it then lost its security component (i.e., the
Mortgage), and thus that the right to foreclose on her property through the Mortgage was
forever lost.
The defendants moved to dismiss the complaint, Fed. R Civ. P. 12(b)(6), arguing
that it failed to state a claim upon which relief may be granted, Fed. R. Civ. P. 12(b)(6);
that federal courts lack jurisdiction to review and reverse state court foreclosure
judgments under the Rooker-Feldman doctrine; and that Gilarmo’s RESPA and HOEPA
claims were barred by statutes of limitation, among other arguments. After full briefing,
the District Court held argument on the defendants’ motion and granted it. The Court
gave its reasons in open court, and its Order was entered on August 20, 2015.
Gilarmo appeals. We have jurisdiction under 28 U.S.C. § 1291. Gilarmo argues
in her pro se brief that the District Court erred in dismissing her complaint. She cites
Glaski v. Bank of America, N.A., 160 Cal. Rptr 3d 449 (Cal. Ct. App. 2013), in support
of her argument that her Note was assigned not to U.S. Bank but to a securitized trust
which could not legally foreclose on her property, and she further argues that the decision
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in Suser v. Wachovia Mortgage FSB, 78 A.3d 1014 (N.J. Super. Ct., App. Div. 2013),
requires reversal of the dismissal of her quiet title claim.1
We will affirm. We exercise plenary review over subject matter jurisdiction and
Rule 12(b)(6) dismissals. See In re: Kaiser Group International Inc., 399 F.3d 558, 560
(3d Cir. 2005) (Fed. R. Civ. P. 12(b)(1)); Weston v. Pennsylvania, 251 F.3d 420, 425 (3d
Cir. 2001) (Fed. R. Civ. P. 12(b)(6). We may affirm on any basis supported by the
record. See Fairview Park Excavating Co. v. Al Monzo Construction Co., 560 F.2d
1122, 1123 n.2 (3d Cir. 1977).
We agree with the District Court that, to the extent that Gilarmo complained of
injuries caused by the state court foreclosure judgment and invited the Court to review it
and reject it, subject matter jurisdiction was lacking. See Great W. Mining & Mineral
Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010). However, the Rooker-
Feldman doctrine is narrow, id. at 167-69. Accordingly, we also hold that, to the extent
that Gilarmo’s civil action presented an independent non-barred claim, she failed to state
a claim upon which relief may be granted, Fed. R. Civ. Pro. 12(b)(6). Dismissal under
Rule 12(b)(6) is proper where the complaint fails to state a claim upon which relief may
be granted, such as where the plaintiff is unable to plead “enough facts to state a claim to
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We reject as meritless one additional argument that the District Court erred in failing to
strike the defendants’ “untimely” motion to dismiss. The district court record shows that
counsel for the defendants sought and received an extension of time until May 1, 2015 in
which to respond to the complaint and then filed the motion to dismiss on May 1, 2015.
Accordingly, it was not untimely. All other arguments are waived. See Nagle v.
Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (“When an issue is either not set forth in the
statement of issues presented or not pursued in the argument section of the brief, the
appellant has abandoned and waived that issue on appeal.”).
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relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The plausibility standard “asks for more than a sheer possibility that a defendant
has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory
allegations are insufficient to survive a motion to dismiss. See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
“[T]he question of standing is whether the litigant is entitled to have the court
decide the merits of the dispute or of particular issues. This inquiry involves both
constitutional limitations on federal-court jurisdiction and prudential limitations on its
exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Constitutional standing requires
an injury that is concrete and particularized and that is not conjectural or hypothetical,
and there must be a causal connection between the injury and the conduct complained of.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Moreover, the “prudential
standing rule … normally bars litigants from asserting the rights or legal interests of
others in order to obtain relief from injury to themselves.” Warth, 422 U.S. at 509.
Gilarmo argues in her brief that U.S. bank as Trustee lacked standing to foreclose
on her property because the Mortgage was not properly assigned to the Trust in
accordance with the Pooling Service Agreement (“PSA”). Her support for this argument
is Glaski, which held that “borrowers have standing to challenge void assignments of
their loans even though they are not a party to, or a third party beneficiary of, the
assignment agreement,” 160 Cal. Rptr at 452. However, as the Appellees have amply
shown, the overwhelming majority of courts have taken a contrary view, holding that a
borrower in default has no standing to challenge an assignment said to violate a pooling
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service agreement like the one at issue here. See Appellees’ Brief, at 18-20 (citing
Rajamin v. Deutsche Bank National Trust Co., 757 F.3d 79, 88 (2d Cir. 2014); Reinagel
v. Deutsche Bank National Trust Co., 735 F.3d 220, 228 & n.29 (5th Cir. 2013); Correia
v. Deutsche Bank National Trust Co. (In re Correia), 452 B.R. 319, 324-25 (1st Cir. BAP
2011)).
When measured against this overwhelming legal precedent, we are not persuaded
that Gilarmo may challenge U.S. Bank’s standing based on alleged non-compliance with
the documents governing the trust. Gilarmo is not a party to the PSA nor a third-party
beneficiary of the PSA, and her injuries are hypothetical. She admits that she took out
the loan, that she is in default, and she does not argue that she ever paid more than the
amount due on her loan, or that she received a bill or demand from any entity other than
the defendants. She does not allege that the allegedly improper transfer interfered with
her ability to pay the Note, or that the original lender would have refrained from
foreclosure under the circumstances. It seems plain enough here that the allegedly
improper assignment merely substituted one creditor for another, without changing her
obligations under the Note.
Gilarmo also argues that the decision in Suser v. Wachovia Mortgage, FSB, 78
A.3d 1014 (N.J. Super. Ct., App. Div. 2013), requires reversal of the dismissal of her
quiet title claim, but that case can be distinguished on its facts. “Any person in the
peaceable possession of lands … claiming ownership thereof, may, when his title thereto,
or any part thereof, is denied or disputed … maintain an action in the superior court to
settle the title to such lands and to clear up all doubts and disputes concerning the same.”
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N.J. Stat. Ann. § 2A:62-1. Suser held that quiet title claims also include situations where
a property owner seeks to resolve whether a putative assignee of an otherwise valid
mortgage properly holds the mortgage. 78 A.3d at 1018-19. However, here, final
judgment was entered against Gilarmo in a foreclosure action. There is no basis in the
statute or her securitization argument for her quiet title claim to proceed, and Suser does
not undermine that determination.
For the foregoing reasons, we will affirm the order of the District Court dismissing
the complaint.
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