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Salami v. J.P. Morgan Chase, N.A.

United States District Court, M.D. North Carolina

June 19, 2019

M. REZA SALAMI, PH.D., M.D., Plaintiff,
v.
JPMORGAN CHASE BANK, N.A., Defendant.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Joe L. Webster United States Magistrate Judge

         This matter comes before the Court upon Defendant Chase Bank, N.A.'s (“Chase”) motion to dismiss under Federal Rules of Civil Procedure 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6). (Docket Entries 11, 12.) Plaintiff M. Reza Salami (“Salami”) has filed a response (Docket Entry 22), and Chase has filed a reply (Docket Entry 23). This matter is ripe for disposition. For the reasons stated herein, the Court recommends that Chase's motion to dismiss be granted for all claims except Salami's claim under the Unfair and Deceptive Trade Practices Act (“UDTPA”).

         I. BACKGROUND

         Salami's Complaint concerns interactions and decisions in the context of the Home Affordable Modification Program (“HAMP”).[1] (See generally Complaint, Docket Entry 2).

         Under HAMP, Salami sought from Chase, his loan servicer, a modification to his loan from Bank of America that was secured by his home. (Docket Entry 2-1 at 2-5.) Salami's Complaint concerns both interactions in his applying for a loan modification and Chase's decision(s) regarding whether to issue him a loan modification:

. . . Chase Bank, NA . . . approved plaintiff loan modification for HAMP Program on December 19, 2015, but Defendant sent the approved document to wrong address. Defendant promised to re-send a new approved document in March 2016. Later on, the Defendant changed its decision and requested the Plaintiff to send the new completed forms and supporting documents again and thus the Plaintiff sent the new Chase Form and supporting documents with about 80 pages for [sic] more than Five times, But [sic] Chase Bank denial [sic] the Loan Modification for not being able to verify the Plaintiff['s] incomes even though the Plaintiff sent them the official incomes document. Plaintiff received the last denial letter in mid July 2018.

(Docket Entry 2 at 4.)

         In his Complaint, Salami asserts federal claims for violations of: (1) the Racketeer Influenced and Corrupt Organizations (“RICO”) Act; (2) the Real Estate Settlement Procedures Act (“RESPA”); and (3) state law claims for breach of contract, unjust enrichment, and violation of the UDTPA:[2]

Plaintiff alleges that the handling of his mortgage modification- assignment, assessment of fees, escrow calculations, foreclosure, and communication about the mortgage-was unlawful in a variety of ways and sues . . . Chase Bank, N.A. . . . under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c), [ ] the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e) . . . . [and] brings claims against Defendant for violations of the North Carolina Consumer Fraud and Deceptive Practices [sic], [3] violations of the Residential License Mortgage Act, [4] breach of contract, and unjust enrichment.

(Id. at 6.)

         Salami seeks various damages, including “actual” and punitive damages, as well as damages for emotional distress, resultant health damages and medical expenses, and the physical costs of, and time wasted on, preparing futile loan modification applications, as well as a court order for Chase to grant him a loan modification. (Id. at 4, 21-22.)

         II. DISCUSSION

         A. Chase's Motion to Dismiss Complaint under Rules 12(b)(2), 12(b)(4), and 12(b)(5)

         Chase first asserts that the Court lacks personal jurisdiction over Chase because Chase was given insufficient service of process and, therefore, impliedly, insufficient process. (Docket Entry 13 at 2-4.) “Absent valid service of process, a court does not acquire personal jurisdiction over the defendant and the action must be dismissed.” Shaver v. Cooleemee Volunteer Fire Dep't, No. 1:07-CV-175, 2008 WL 942560, at *2 (M.D. N.C. Apr. 7, 2008) (unpublished) (citation omitted). However, “objection to sufficiency of process or service of process ‘must be specific and point out in what manner the plaintiff has failed to satisfy the requirements….' ” Patterson v. Whitlock, 392 Fed.Appx. 185, 193 (4th Cir. 2010) (citation omitted). Service of process within the United States on an unincorporated association must occur either “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process” (Fed.R.Civ.P. 4(h)(1)(B)) or by following the service of process rules of the state in which the district court where the action is brought is located. Fed.R.Civ.P. 4(e)(1) and 4(h)(1)(A). North Carolina's rules permit service of process on an unincorporated association by delivering the summons and complaint-personally, by specified mailing method, or by designated and specified delivery service-to “an officer, director, managing agent, [ ] member of the [association's] governing body, ” or other authorized agent, or to someone inside of and in charge of such an individual's office. N.C. Gen. Stat. § 1A-1, Rule 4(j)(8).

         In support of its assertion of insufficient service of process and process, Chase simply states, “[t]he summons in this case is not directed to any person authorized to accept service of process on behalf of Chase under [such]… [r]ules….” (Docket Entry 13 at 7.) Process was served in the name of Ms. Ramona Farzad, a firm lawyer, and received by Karen Frey, a paralegal.[5] (Docket Entry 10 at 1.) Also, Ms. Lorianne K. Williams, V.P. and Assistant General Counsel for Chase was served via certified mail on October 19, 2018. (Docket Entry 17). However, Chase does not mention either of them by name or by position or otherwise indicate its awareness that process was served on them. Notwithstanding the burden upon Salami to demonstrate proper service, see Elkins v. Broome, 213 F.R.D. 273, 275 (M.D. N.C. 2003), Chase's assertion is thus barebones and fails to sufficiently allege deficiencies in service of process and in process.

         Assuming, however, that Chase has not been properly served in this matter, the Court should nonetheless retain Salami's case until adequate service of process is provided. Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir. 1983) (citing Stern v. Beer, 200 F.2d 794, 795 (6th Cir. 1952) (“If the first service of process is ineffective, a motion to dismiss should not be granted . . . . [T]he Court should…quash [] service of process and . . . retain[ the case] . . . pending effective service.”)). Even where there is a technical defect in service, “dismissal is not always mandated where the necessary parties have received actual notice of a suit and where they have not been prejudiced by the technical defect in service.” McCreary v. Vaughan- Bassett Furniture Co., 412 F.Supp.2d 535, 537 (M.D. N.C. 2005) (citation omitted). The Court has discretion to dismiss the action or to quash service and allow more time for service of process. Thomas v. Nelms, No. 1:09-CV-491, 2013 WL 593419, at *1 (M.D. N.C. Feb. 14, 2013) (unpublished). And “courts generally allow pro se plaintiffs a chance to remedy technical insufficiencies in service of process.” Id. Thus, Plaintiff's Complaint should not be dismissed on this ground.

         B. Chase's Motion under R. 12(b)(6) for Failing to State Claims

         Chase argues that each of Salami's five purported claims “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).[6] A motion to dismiss under Rule 12(b)(6) for failure to state a claim should be granted if the complaint does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim to relief is “plausible on its face”

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). That is, “[f]actual allegations must… raise a right to relief above the speculative level.” Twombly at 555.

         A Rule 12(b)(6) motion tests the legal sufficiency of a complaint; it “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). To test the legal sufficiency of a complaint, courts should “assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations.” E. Shore Mkts. Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). But, even while assuming a complaint's alleged facts as true, courts are not bound by its “legal conclusions drawn from the facts” or its “unwarranted inferences, unreasonable conclusions, or arguments.” Id.

         Courts are to liberally construe pro se complaints in assessing their sufficiency. Erickson, 551 U.S. at 94. Yet, even so, courts “must read the complaint as plaintiff writes it….” Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998). Thus, courts evaluate whether factual allegations within a complaint[7] advance each of its claims “across the line from conceivable to plausible.” Walters v. McMahan, 684 F.3d 435, 439 (4th Cir. 2012).

         Of Salami's five purported claims, (1) RICO, (2) RESPA, (3) breach of contract, (4) unjust enrichment, and (5) UDTPA, only the ...


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