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Barak v. Hsbc Bank, Na

United States District Court, Third Circuit

June 14, 2013

HSBC BANK, NA, et al., Defendant.


MARY PAT THYNGE, Magistrate Judge.


Apparently from his documents, plaintiff entered into a mortgage with defendant[1] in order to purchase a house.[2] The mortgage appears to have been initiated around September 1998.[3] It also appears plaintiff eventually defaulted on his mortgage sometime around September 2011.[4]

After plaintiff defaulted, defendant initiated foreclosure proceedings. In response, plaintiff mailed defendant several documents, all of which he apparently prepared himself. The initial documents, captioned "Notice and Demand" and "True Bill, " were forwarded to defendant on December 16, 2011, and received on December 19, 2011.[5] In the Notice and Demand document, plaintiff claimed defendant "tricked" him into a one-sided contract without disclosing all the terms and conditions of the loan. He asserts defendant made him a "depositor" and not a "borrower."[6] Because defendant deposited the mortgage into his checking account, plaintiff claims the amount provided pursuant to the mortgage was never a loan.[7] In the "True Bill" document, plaintiff listed his purported damages resulting from defendant's conduct, as $6, 986, 959.29.[8] Also attached to the Notice and Demand and True Bill was a list of several "interrogatories" asking about defendant's relationship to plaintiff and its banking practices.[9] Finally, this group of documents provided a specific time frame of thirty days for defendant to respond to plaintiff's "complaint."[10]

After the thirty day time frame lapsed on January 19, 2012, plaintiff forwarded defendant a third document, "Notice of Default with Opportunity to Cure, " on January 27, 2012.[11] This "notice" gave defendant a three day window to respond to plaintiff's initial documents in the event that its failure to respond was an oversight, mistake, or unintentional.[12] The purported Notice of Default was delivered to defendant on February 2, 2012.[13]

On February 12, 2012, after no response from defendant to his prior notices, plaintiff generated yet another document titled "Notice of Default (Nihil Decit), "[14] which advises he was seeking a default judgment because of defendant's alleged failure to respond in the time allotted.[15]

The final writing plaintiff sent to defendant, "Final Determination and Judgment, " was executed and notarized on May 11, 2012, [16] and reiterates because of defendant's previous failures to respond, it waived its opportunity to contest the damages outlined in the True Bill, thereby entitling plaintiff to a default judgment.[17] All documents forwarded to defendant were before any action or proceedings were initiated by plaintiff in any court. Plaintiff filed this instant matter for alleged damages on June 29, 2012.[18]


On December 7, 2012, defendant filed a Rule 12 (b)(6) motion to dismiss.[19] The motion particularly highlights that the complaint lacks sufficient facts regarding any actionable conduct by defendant and only contains legal conclusions.[20] Plaintiff filed a "brief" in opposition to defendant's motion to dismiss on January 7, 2013, which merely contains legal citations without addressing defendant's arguments. Plaintiff asserted his complaint was sufficient because it satisfied the short and plain statement requirement of FED. R. CIV. P. 8, [21] by citing to older cases regarding the sufficiency of a complaint, [22] the findings of which had been overturned or dramatically affected by the more recent cases of Twombly and Iqbal. [23] He further claimed the pleading requirements from cases cited in defendant's brief were not valid.[24] Plaintiff then addressed the issue of subject matter jurisdiction, which was not challenged in defendant's brief.[25]

Before any ruling on defendant's motion to dismiss, plaintiff filed a motion for summary judgment on February 12, 2013, which consisted only of copies of the four aforementioned documents attached to his complaint and sent to defendant during 2011 and 2012.[26] Defendant answered and cross moved for summary judgment on February 22, 2013, arguing that plaintiff's motion for summary judgment was premature, and in the alternative, there were no genuine disputes over any material facts.[27]


A. Standard of Review

FED. R. CIV. P. 12(b)(6) permits a party to move to dismiss a complaint for failure to state a claim upon which relief can be granted. The purpose of a motion under Rule 12(b)(6) is to test the sufficiency of the complaint, not to resolve disputed facts or decide the merits of the case.[28] "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."[29] A motion to dismiss may be granted only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is not entitled to relief."[30] While the court draws all reasonable factual inferences in the light most favorable to a plaintiff, it rejects unsupported allegations, "bald assertions, " and "legal conclusions."[31]

To survive a motion to dismiss, plaintiff's factual allegations must be sufficient to "raise a right to relief above the speculative level...."[32] Plaintiff is therefore required to provide the grounds of his entitlement to relief beyond mere labels and conclusions.[33] Although heightened fact pleading is not required, "enough facts to state a claim to relief that is plausible on its face" must be alleged.[34] A claim has facial plausibility when a plaintiff pleads factual content sufficient for the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.[35] Once adequately stated, a claim may be supported by showing any set of facts consistent with the allegations in the ...

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