UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________

CRYSTAL MURDOCK, :

Hon. Joseph H. Rodriguez

Plaintiff, :

Civil Action No. 10-4717

v. :

EAST COAST MORTGAGE CORP., et al, : OPINION

Defendants. :

_________________________________

Presently before the Court are several motions filed by the parties in these cases,

which have been consolidated. In addition to the above captioned case ( “the 4717

case”), the other two cases implicated in these motions are as follows: OneWest Bank,

FSB v. Murdock et al., Civil No. 10-4695 (JHR/JS) (“the 4695 Case”) and CitiMortgage,

Inc. et al. v. Murdock et al., Civil No. 10-5360 (JHR/JS) (“the 5360 Case”). Crystal

Murdock (“Murdock”) filed motions, pursuant to Fed. R. Civ. P. 60(b), to set aside

portions of the Court’s Order dated August 17, 2011 in each of the three cases before the

Court. In the 4717 case, Defendant Zucker, Goldberg & Ackerman (“Zucker”) moves to

dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).

Over the course of the many months that this litigation has been pending, the

parties resolved a majority of the issues during a series of meetings with Magistrate

Judge Schneider. In addition, in her opposition brief, Murdock voluntarily abandons a

number of the claims against Zucker. The only claims that remain are Mudock’s claims 1

 The claims plead against Zucker were as follows: violations of the Fair Debt Collection 1

Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq.; the New Jersey Consumer Fraud

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 1 of 18 PageID: 3371
under the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 and the

related claim of conspiracy to violate the FDCPA. As a result, the claims under the

NJFFA (Count XI and in part Count IX), the claims for breach of the covenant of good

faith and fair dealing (Count XIV), professional negligence (Count XV), the New Jersey

Consumer Fraud Act, N.J.S.A. §§ 56:8-1, et seq. (Count XVI), and other common law

claims (Counts XII and XIII) are dismissed without prejudice pursuant to Fed. R. Civ. P.

41(a)(2).

On August 17, 2011, this Court entered an Order dismissing all of Murdock’s

claims under the FDCPA against moving Defendants East Coast Mortgage Company

(“East Coast”), OneWest Bank, FSB (“OneWest”), and McCabe, Weisberg and Conway

(“McCabe”) on the ground that the claims were time barred. See Dkt. Nos. 55 & 56. 

Murdock moves for relief from that judgment, challenging the decision as incorrect. On 2

the other hand, Zucker seeks to use the reasoning of the decision to justify its motion on

Act, N.J.S.A. §§ 56:8-1, et seq.; the New Jersey Fair Foreclosure Act (“NJFFA”), N.J.S.A.

2A:50-53 to -68; fraud, civil conspiracy, professional negligence, breach of the covenant

of good faith and fair dealing; and various other state law theories. 

 Although Plaintiff moves under Fed. R. Civ. P. 60 (b), her motion really asks for 2

reconsideration of the Court’s August 17, 2011 Order. Plaintiff was precluded from

moving for reconsideration under Fed. R. Civ. P. 59 because such a motion must be

made within ten days of the Court’s Order; Plaintiff filed a direct appeal on September

12, 2011 and then filed the present motion on October 3, 2011. Thus, a Rule 59 motion

was time-barred.

The direct appeal was dismissed because the Court’s August 17, 2011 Order did

not constitute a final order and Appellate review was not ripe. For this reason,

Defendant McCabe’s contention that Murdock’s Rule 60(b) motions are procedurally

defaulted in light of Murdock’s direct appeal is unavailing. The Court has, and may have

always had, jurisdiction to entertain Murdock’s motions. See Venen v. Sweeten, 758

F.2d 117, 121 (3d Cir. 1985) (noting that a district court retains jurisdiction where an

appeal has been taken on a unappealable issue.) As a result, Murdock’s Rule 60(b)

motions are properly before the Court at this time. 

2

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 2 of 18 PageID: 3372
the same grounds as the rule of the case. The Court has considered the written 3

submissions of the parties, as well as the arguments advanced during the June 12, 2012

hearing. For the reasons stated on the record that day and for those that follow,

Murdock’s Rule 60(b) motions are denied and Zucker’s motion to dismiss is granted.

I. Background & Procedural History

The parties are familiar with complicated procedural evolution of the three

actions currently before the Court, the identities of all parties currently or previously

involved in the litigation, and the specifics of the allegations advanced. The Court

recites only on the facts that are germane to the instant motions. 

4

A. Origination of the Burlington Property Loan

Defendant Zucker served as counsel to IndyMac Federal Savings Bank and

initiated foreclosure proceedings against one of Murdock’s properties located in

Burlington, New Jersey. The procedural and factual history of the Burlington

foreclosure action are relevant to the disposition of the present motion. The relevant

facts of that transaction are as follows.

 Arguably, Zucker is correct that the law of the case doctrine applies here. “The law 3

of the case doctrine directs district courts to refrain from re-deciding issues that were

resolved earlier in the litigation. . . . Because it prevents courts from entertaining endless

appeals on the same issue, the doctrine promotes finality and judicial economy.” Public

Interest Research Group of N.J., Inc. v. Magnesium Electron Inc., 123 F.3d 111, 116 (3d

Cir. 1997). However, given that Murdock seeks relief from that judgment, the Court

must first consider whether that judgment retains effect and, if so, whether the facts as

they relate to Zucker are in step with those facts underlying the August 17, 2011 Order.

The background facts which constitute the basis for the parties’ dispute are taken 4

from the Second Amended Complaint and the exhibits attached thereto. The relevant

procedural history is taken from the Court’s review of the dockets of these three cases.

Additional facts and the relevant procedural history can be gleaned from the Court’s

Opinion and Order of August 17, 2011.

3

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 3 of 18 PageID: 3373
On October 24, 2007, Murdock and East Coast entered into a loan agreement in

connection with the purchase of a property located at 7 Brook Drive, Burlington, New

Jersey (“Burlington Property”). (Id.) Murdock secured the promissory note (“Note”)

for the purchase of the Burlington Property by executing a mortgage (“Mortgage”) on

the subject property, naming Mortgage Electronic Registration Systems, Inc. (“MERS”)

as nominee for East Coast. (Id.) 

On July 11, 2008 IndyMac Bank, FSB (“IndyMac”) was closed by the Office of

Thrift Supervision (“OTS”) and the FDIC was appointed as its receiver. (Second Am.

Compl., Ex. A., Determination of Insufficient Assets To Satisfy Claims Against Financial

Institution in Receivership, 74 Fed. Reg. 59,540 (FDIC Nov. 18, 2009)(“FDIC Notice”)). 

On the same day, OTS authorized creation of IndyMac Federal Bank, FSB (“IndyMac

Federal”), a new federal savings bank for which the FDIC was appointed as conservator. 

(Id.) IndyMac's assets were transferred to IndyMac Federal under an agreement

whereby the amount, if any, realized from the final resolution of IndyMac Federal after

payment in full of IndyMac Federal's obligations was to be paid to the IndyMac

receivership. (Id.) 

According to Murdock, on or about March 12, 2009, Mortgage Electronic

Registration Systems, Inc. (“MERS”), as nominee for East Coast Mortgage, executed an

assignment of the Burlington Property Mortgage, without the Note, to IndyMac Federal. 

(Second Am. Compl. at ¶ 116.) However, the Burlington Property Mortgage alone,

without the Note, was transferred by East Coast to MERS in its capacity as nominee. 

(Id. at ¶ 110.) 

4

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 4 of 18 PageID: 3374
On March 19, 2009, IndyMac Federal was placed in receivership and

substantially all of its assets were sold. On that date, the FDIC Receiver-IndyMac, the

FDIC Conservator-IndyMac Federal and OneWest entered into multiple loan sale

agreements (“Master Purchase Agreement”), whereby OneWest assumed substantially

all of the assets of the FDIC Conservator-IndyMac Federal, including the Mortgage on

the Burlington Property. (Id. at ¶ 119; Ex. A, June 1, 2010 FDIC Letter regarding

Burlington Foreclosure Case.) 

One week later, on March 26, 2009, the Zucker law firm filed a Complaint for

Foreclosure on the Burlington Property on behalf of IndyMac Federal in the Superior

Court of New Jersey, Chancery Division, Burlington County, bearing docket number F16148-09 (“Burlington Foreclosure Case”). (Id. at ¶ 120.) On January 27, 2010, McCabe

replaced Zucker as counsel for IndyMac Federal. (Id. at ¶ 122.) On May 15, 2010, the

law firm of Parker McCay also entered an appearance and thereafter filed a motion on

June 1, 2010 to substitute OneWest as plaintiff in lieu of IndyMac Federal. (Id. at ¶¶

123, 125.) The trial judge entered an order on June 24, 2010, substituting OneWest as

plaintiff in the Burlington Foreclosure Case. (Id. at 127.)

B. Present Motions

Murdock filed a Second Amended Complaint in this Court on October 12, 2010,

which for the first time, contained claims under the FDCPA against McCabe, East Coast

and One West and Zucker. The Court’s Opinion and Order of August 17, 2011 held that 5

 The majority of the claims plead have been resolved with the exception of the FDCPA 5

claims against Zucker and the claim that Zucker acted in concert with others and/or

conspired to violate the FDCPA. (Id. at ¶¶ 132-36). Murdock filed a stipulation of

dismissal without prejudice as to all claims against the FDIC as receiver for IndyMac

5

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 5 of 18 PageID: 3375
Murdock’s claims under the FDCPA, against McCabe, East Coast and One West, were

time-barred and that Murdock’s actions did not warrant the extreme remedy of

equitable tolling. The Court reasoned that Murdock’s claim under the FDCPA accrued

with the filing of the foreclosure action on March 26, 2009 and that, with respect to

equitable tolling, Murdock should have been aware as early as November 6, 2009 of a

potential claim under the FDCPA and failed to act with requisite diligence in bringing

her claim. Murdock did not file the Second Amended Complaint, alleging claims under

the FDCPA, until October 12, 2010, well outside the one year limitations period. As a

result, the Court dismissed the claims as time barred and declined to equitably toll the

limitations period under the circumstances of the case.

For the same reasons set forth in the Court’s August 17, 2011 Opinion and Order,

Zucker contends that Murdock’s claims against it under the FDCPA are time barred and

that equitable tolling of the limitations period is not warranted. Alternatively, Zucker

moves to dismiss Murdock’s FDCPA claims on the merits for failure to state a claim

under Fed. R. 12 (b)(6). Murdock’s reasoning in her opposition brief is intertwined with

her motions for relief from judgment under Fed.R.Civ.P. 60(b)(1) and (b)(6). She

argues the Court’s decision was error and opposses Zucker’s Rule 12(b)(6) motion.

The Court considers the arguments under the following standards of review.

Federal on November 19, 2010, [Dkt. Entry No. 19], and a stipulation of dismissal with

prejudice as to all claims against Parker on July 14, 2011 [Dkt. Entry No. 51].

6

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 6 of 18 PageID: 3376
II. Standards of Review

A. Rule 12(b)(6)

A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken

as true, fail to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). 

Under Fed. R. Civ. P. 8(a)(2), a pleading must contain only a “short plain statement of

the claim showing that the pleader is entitled to relief.” A plaintiff is not required to

plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). However,

although “detailed factual allegations” are not necessary, “a plaintiff’s obligation to

provide the grounds of his entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted).

When reviewing a motion to dismiss, “courts accept all factual allegations as true,

construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to

relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (internal

quotations omitted). The question is not whether the plaintiff will ultimately prevail. 6

“Although a district court may not consider matters extraneous to the pleadings, 6

a document integral to or explicitly relied upon in the complaint may be considered

without converting the motion to dismiss into one for summary judgment.” U.S.

Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (internal quotation

marks and citations omitted) (emphasis deleted). To that end, “courts may consider a

document that a defendant attaches as an exhibit to a motion to dismiss, provided that

its authenticity is undisputed and that plaintiff's claims are based on the document.”

Rogan v. Giant Eagle, Inc., 113 F.Supp.2d 777, 781 (W.D. Pa. 2000) (citing Pension

Benefit Guaranty Corp. v. White, 998 F.2d 1192, 1196 (3d Cir.1993)). Further, “a court

may properly look at public records, including judicial proceedings, in addition to the

allegations in the complaint.” Southern Cross Overseas Agencies, Inc. v. Wah Kwong

Shipping Group Ltd., 181 F.3d 410, (3d Cir. 1999). These exceptions prevent a plaintiff

with a legally deficient claim from surviving a motion to dismiss by failing to attach a

dispositive document on which it relied.

7

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 7 of 18 PageID: 3377
Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007). Rather, to survive a motion

to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. - - - , 129 S. Ct.

1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). 

To determine the sufficiency of a complaint, the Third Circuit has held that the

Court must conduct a three-step test. Santiago v. Warminster Twp., 629 F.3d 121, 130

(3d Cir. 2010). First, the Court must “tak[e] note of the elements a plaintiff must plead

to state a claim.” Iqbal, 129 S. Ct. at 1947. Next, the Court must separate the factual

allegations from the legal conclusions. Id. at 1950. While the well-pleaded facts are

accepted as true, legal conclusions are not entitled to the assumption of truth. Id. Last,

the Court must determine whether the well-pleaded, non-conclusory factual allegations

“plausibly give rise to an entitlement to relief.” Id. 

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 1949. Therefore, the complaint must do more than allege

the plaintiff’s entitlement to relief; it must “show” such an entitlement. Fowler, 578

F.3d at 211. “[W]here the well-pleaded facts do not permit the court to infer more than

the mere possibility of misconduct, the complaint has alleged but it has not ‘show[n]

that the pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P.

8(a)(2)). Ultimately, assessing plausibility is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” Fowler, 578 F.3d

at 211 (quoting Iqbal, 129 S. Ct. at 1949).

8

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 8 of 18 PageID: 3378
B. Rule 60(b)

Murdock moves under Fed. R. Civ. P. 60(b)(1) and (b)(6). Federal Rule of Civil

Procedure 60(b) provides: 

On motion and upon such terms as are just, the court may relieve a party

or a party's legal representative from a final judgment, order, or

proceeding for the following reasons: (1) mistake, inadvertence, surprise,

or excusable neglect; (2) newly discovered evidence which by due

diligence could not have been discovered in time to move for a new trial

under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of an adverse party; (4)

the judgment is void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has been reversed

or otherwise vacated, or it is no longer equitable that the judgment should

have prospective application; or (6) any other reason justifying relief from

the operation of the judgment. . . .

Fed. R. Civ. P. 60(b). 

A motion filed pursuant to Rule 60(b) is left to the sound discretion of the trial

court, and it “does not confer upon the district courts a ‘standardless residual of

discretionary power to set aside judgments.’” Moolenaar v. Government of the Virgin

Islands, 822 F.2d 1342, 1346 (3d Cir. 1987). Rather, “relief under Rule 60(b) is

extraordinary and requires a showing of exceptional circumstances.” Rolo v. City

Investing Co. Liquidating Trust, 155 F.3d 644, 654 (3d Cir. 1998) (quoting Marshall v.

Board of Education, 575 F.2d 417, 425-26 (3d Cir. 1978)) (internal quotation marks

omitted) such as where “extreme and unexpected hardship” will result without it. Sawka

v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993). As the Third Circuit explained in

Kock v. Government of the Virgin Islands, 811 F.2d 240 (3d Cir. 1987), 

Rule 60(b) must be applied ‘[s]ubject to the propositions that the finality

of judgments is a sound principle that should not lightly be cast aside,

[and] that clause (6) is not a substitute for appeal. . . .’ It is intended to be

9

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 9 of 18 PageID: 3379
a means for accomplishing justice in extraordinary situations, and so

confined, does not violate the principle of the finality of judgments. 

Kock, 811 F.2d at 246. 

III. Discussion

Murdock’s Rule 60(b) motion implicates Zucker’s motion to dismiss as it relates

to the statute of limitations issue. Therefore, the Court will first address the statute of

limitations issue.

A. Murdock’s Claims under the FDCPA

Congress enacted the FDCPA “to eliminate abusive debt collection practices by

debt collectors, to insure that those debt collectors who refrain from using abusive debt

collection practices are not competitively disadvantaged, and to promote consistent

State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692e. 

The FDCPA prohibits, generally, the use of harassing oppressive, and abusive techniques

in connection with the collection of debts, 15 U.S.C. § 1692d; the use of false, deceptive,

or misleading representations in connection with the collection of debts, 15 U.S.C. §

1692e; and the use of unfair or unconscionable means in connection with the collection

of debts, 15 U.S.C. § 1692f. Section 1692k provides a private right of action to any

person with respect to whom a debt collector has violated the statute. 15 U.S.C. §

1692k(a). However, an action under the statute must be commenced “within one year

from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). 

 Murdock’s FDCPA cause of action began to accrue on March 26, 2009, or shortly

thereafter on May 23, 2009, when she was served with the foreclosure complaint. See

10

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 10 of 18 PageID: 3380
Parker v. Pressler & Pressler, LLP, 650 F. Supp. 2d 326, 338 (D.N.J. 2009). As to 7

Murdock’s claims against OneWest, East Coat , McCabe, and Zucker, the filing of the

foreclosure complaint starts the FDCPA statute of limitations clock and Murdock’s cause

of action, filed nearly five months late, is time-barred. Murdock’s argument, made in her

brief and during oral argument, that the substitution of McCabe as foreclosure counsel

starts the clock anew as to McCabe is unavailing. 

Although different communications from a creditor may be considered as

separate violations of the FDCPA, McCabe’s appearance in the case in January 2010

does not constitute a separate cause of action under the FDCPA that begins the

limitations clock anew. Murdock’s contention that the furthering of the foreclosure

action by foreclosure counsel McCabe constitutes a separate violation that can be

brought “within one year from the date on which the violation occurs,” pursuant to 15

U.S.C. § 1692k(d) is not recognized in this Circuit. Indeed, the Third Circuit has

declined to extend the “continuing violations doctrine” in a debt collection action against

counsel in a foreclosure action. Schaffhauser v. Citibank (South Dakota) N.A., 340 Fed.

Appx. 128, 130-31 (3d Cir. 2009). McCabe’s participation in the foreclosure action

against Murdock is, therefore, not a continuing or new violation under the FDCPA that

affords Murdock a new limitations clock. Id. As a result, as to East Coast, One West and

McCabe, the statute of limitations period began to run at he time that Murdock was

served with the foreclosure Complaint. The FDCPA claims against East Coast, One West

 There is a split of authority on whether the filing date or the service date trigger the 7

limitations clock under the FDCPA. In this case, Murdock’s claim falls outside the

limitation period triggered by either of those dates, so the Court need not decide which

event starts the limitations clock. See Schaffhauser v. Citibank (South Dakota) N.A.,

340 Fed. Appx. 128, 130-31 (3d Cir. 2009).

11

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 11 of 18 PageID: 3381
and McCabe are time-barred and the Court will not amend the August 17, 2011 Order in

this regard. 

For the same reasons, because the limitations clock began to run at the latest on

May 23, 2009 against Zucker, Murdock’s claims are time-barred.

B. The Doctrine of Equitable Tolling

Murdock’s claims are not saved by the doctrine of equitable tolling. Equitable

tolling is an extraordinary remedy that can rescue a claim otherwise barred by the

statute of limitations “when a plaintiff has ‘been prevented from filing in a timely

manner due to sufficiently inequitable circumstances.’” Santos v. United States, 559

F.3d 189, 197 (3d Cir. 2009) (quoting Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d

236, 240 (3d Cir. 1999)). The doctrine applies in three limited circumstances: “(1)

where the defendant has actively misled the plaintiff respecting the plaintiff's cause of

action; (2) where the plaintiff in some extraordinary way has been prevented from

asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights

mistakenly in the wrong forum.” Id. (citing Oshiver v. Levin, Fishbein, Sedran &

Berman, 38 F.3d 1380, 1387 (3d Cir. 1994)). To be entitled to tolling on the grounds of

fraudulent concealment, a plaintiff “must allege that the defendants' conduct prevented

him ‘from recognizing the validity of [her] claim within the limitations period.’” Kliesh

v. Select Portfolio Servicing, Inc., 419 Fed. App’x 268, 271 (3d Cir. 2011) (quoting

Mathews v. Kidder, Peabody & Co., 260 F.3d 239, 256 (3d Cir. 2001)) (alteration in

original).

The principles of equitable tolling do not extend to “garden-variety claims of

excusable neglect.” Santos, 559 F.3d at 197 (quoting Irwin v. Dep't of Veterans Affairs,

12

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 12 of 18 PageID: 3382
498 U.S. 89, 96 (1990). Therefore, a plaintiff must also establish that she exercised due

diligence in attempting to uncover the relevant facts and preserving her claim. Id.; see

also Cetel v. Kirwan Financial Group, Inc., 460 F.3d 494, 509 (3d Cir. 2006). 

Ultimately, a plaintiff seeking to invoke the extraordinary remedy of equitable tolling

bears a heavy burden and the Court should extend its application only sparingly. See

Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005). 

Murdock takes issue with the Court’s finding that the November 18, 2009 FDIC

Notice, attached to the Second Amended Complaint, placed her and counsel on notice of

a potential FDCPA claim by stating that: “On March 19, 2009, Indy Mac Federal was

placed in receivership and substantially all of its assets were sold.” Murdock contends

that notice of a claim was not imputed because she had no way of knowing whether the

Note and Mortgage were included in the group of assets sold until she received the

response to her discovery requests on April 15, 2010. She contends that the word

“substantially” undercuts the certainty of the sale of her Note and Mortgage and does

not put her on notice of a potential claim under the FDCPA. 

8

In addition, Murdock recites in her brief paragraphs 119, 120, 121, 130, 132, and

133 of the Second Amended Complaint in support of her contention that she sets forth

sufficient facts under Fed. R. Civ. P. 8(a). As a result, she argues that the Court’s August

17, 2011 is erroneous and that under these circumstances equitable tolling is

appropriate. Murdock insists that it was not until McCabe furnished its responses to her

First Set of Requests for Admissions on or about April 15, 2010, that she first became

 Counsel goes on to argue that filing a claim under the FDCPA after receiving the 8

November 18, 2009 FDIC notice would constitute a violation of N.J.Ct.R. 1:4-8(a)(3)

and be unethical.

13

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 13 of 18 PageID: 3383
aware that IndyMac Federal was not the holder of the Note and Mortgage at the

commencement of the foreclosure action. (Id. at ¶¶ 121, 129-31.) 9

Applying the Rule 60(b) standard to the facts of this case, the Court finds that

Murdock is not entitled to relief, as there have been no extraordinary circumstances

presented to invoke the equity of Rule 60(b). Rather, Murdock continues to argue that

the dates employed in the Court’s statute of limitations and equitable tolling analyses

under the FDCPA are erroneous. Murdock also reargues that she was actively misled by

the defendants and that this conduct caused her delayed discovery of the alleged FDCPA

violations. 

 Contrary to her argument, Murdock has not demonstrated sufficient cause under

Rule 60(b) for the Court to disturb its August 17, 2011 ruling. Murdock’s FDCPA cause

of action began to accrue on March 26, 2009, or shortly thereafter on May 23, 2009,

when she was served with the foreclosure complaint. See Parker, 650 F. Supp. 2d at

338. First, as the Court previously held, Murdock does not plead sufficient facts to

establish that the defendants actively misled her. Murdock’s FDCPA claim is predicated

on the fact that when Zucker filed the foreclosure complaint on March 26, 2009,

IndyMac was “a defunct and non-existent entity.” (Opp’n to OneWest/EastCoast, p. 4.;

Opp’n to McCabe, p. 2.) She contends that the defendants actively misled her because

no efforts were made by IndyMac Federal or Zucker to apprise her of IndyMac Federal’s

interest in the Mortgage or Note associated with the Burlington Property, which

 Murdock’s argument that she was beholden to the state’s discovery schedule and was 9

precluded otherwise from endeavoring to learn whether or not IndyMac was the holder

of her mortgage does not establish that defendants actively mislead her or that she was

diligent in her efforts.

14

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 14 of 18 PageID: 3384
changed hands only a week prior to the filing of the foreclosure complaint. (Opp’n to

OneWest/EastCoast, p. 4.; Opp’n to McCabe, p. 3.) Further, Murdock supports her

argument on the grounds that the Note and Mortgage have seemingly become

separated, stating: 

Is clearly impossible for one mortgage and one note to follow two different

tracks simultaneously without the intent to deceive Crystal Murdock and

this Court or any other entity and/or individual who attempts to ascertain

the ownership and/or possession of the subject mortgage and note which

are being litigated herein.

(Opp’n to OneWest/EastCoast, p. 6.; Opp’n to McCabe, p. 4.) As the Court noted in its

Opinion of August 17, 2011, Murdock’s 79 page, 273 paragraph Second Amended

Complaint, asserts sixteen causes of action. Counts IX-XVI merely recite, verbatim

without further enhancement, the same legal conclusions found in four paragraphs

contained in the Facts Common to All Claims section. These are merely legal

conclusions, rather than factual allegations, that are not entitled to an assumption of

truthfulness when ruling on a Rule 12(b)(6) motion to dismiss. Iqbal, 129 S. Ct. at 1950.

Murdock also fails to establish that she exercised due diligence in uncovering the

relevant facts and preserving her claim. Murdock attempts to argue that she was

unaware of the possibility that IndyMac Federal did not hold the Note until she received

confirmation from McCabe in April of 2010. (Second Am. Compl., ¶¶ 129-30.) However,

Murdock’s unsupported contention is belied by the facts alleged and documentation

relied on in her Second Amended Complaint. As the Court previously ruled, Murdock’s

First Set of Requests for Admissions filed in the Burlington Foreclosure Case repeatedly,

if not exclusively, references the March 19, 2009 Master Purchase Agreement and

15

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 15 of 18 PageID: 3385
transfer of substantially all assets from IndyMac Federal to OneWest. These Requests 10

for Admissions are dated November 6, 2009, indicating that Murdock was aware of the

transfer of assets less than eight months after the filing of the initial foreclosure

complaint. Further, the Nov. 18, 2009 FDIC Notice, attached as an exhibit to the

Second Amended Complaint, placed Murdock and her counsel on notice that: “On

March 19, 2009, IndyMac Federal was placed in receivership and substantially all of its

assets were sold.” (Second Am. Compl., Ex. A., FDIC Notice.) Thus, Murdock’s

assertion that “unfortunately, this fact was not readily known and/or ascertainable to

Crystal Murdock until the Foreclosure Action was well underway,” (Opp’n to

OneWest/EastCoast, p. 4.; Opp’n to McCabe, pp. 2-3,) is contradicted by the record. 

Murdock has failed to show that the defendants actively misled her from

ascertaining the existence of her FDCPA claims, and because she has failed to show that

she exercised reasonable diligence in investigating and bringing these claims, the

extreme remedy of equitable tolling is inappropriate. See Santos, 559 F.3d at 197. 

Murdock knew, or should have known, that the statute of limitations period for a claim

under the FDCPA began to run, at the latest, when she was served with the Complaint. 

She failed to act in a diligent manner to preserve her rights after receiving the November

2009 MERS notice which indicated that her mortgage may have been transferred.

11

Murdock did not inquire about the status of her mortgage through any channels, even

Because Murdock relies on this document in her Second Amended Complaint, 10

(Second Am. Compl., ¶¶ 129-30), it is properly considered by the Court. See U.S.

Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).

 One would rightly understand the term “substantially all” to be more than a mere 11

possibility as Murdock has claimed during oral argument. 

16

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 16 of 18 PageID: 3386
though she knew the statute of limitations was running. Instead, Murdock waited until

she received confirmation through the discovery process. 

Murdock argues that she did not have a good faith basis to file the FDCPA

complaint after receiving the MERS notice. The Court disagrees. Accordingly,

Murdock’s FDCPA claims are dismissed as time-barred. The heavy burden of 12

demonstrating that the extraordinary remedy of equitable tolling is appropriate in this

instance has not been met. See Hedges v. United States, 404 F.3d 744, 751 (3d Cir.

2005). The Court’s conclusion that Murdock failed to demonstrate that she was actively

misled or that she exercised reasonable diligence in investigating and bringing her

claims, remains unchanged. She has not met the heavy burden of Rule 60(b) and her

motion in this regard is denied.

For the same reasons that Murdock’s claim is time-barred as to McCabe, so too is

Murdock’s claim under the FDCPA as to Zucker. Zucker made the initial filing and

service of the complaint in foreclosure to Murdock. Murdock’s Complaint was filed

nearly 19 months after service of the foreclosure action and it is, according, time-barred. 

For the same reasons that the extreme remedy of equitable tolling do not apply, as

detailed supra. with respect to McCabe, Murdock is not entitled to equitable tolling with

respect to Zucker. 

To the extent that Murdock’s FDCPA claim is predicated on activity other than 12

the filing of the foreclosure complaint and alleged attempts by the defendants to conceal

IndyMac Federal’s interest in the loan, she fails to plead with sufficient particularity to

show an entitlement to relief under any provision of the FDCPA. Iqbal, 129 S. Ct. at

1950. The Court will not attempt to decipher which additional conduct alleged in the

Second Amended Complaint Murdock feels violated her rights under the FDCPA and

then further endeavor to guess which provision of the FDCPA was violated by that

conduct. 

17

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 17 of 18 PageID: 3387
C. Zucker’s Motion to dismiss 

 Zucker contends that Murdock failed to plead that she was a “consumer” who

received a “communication” from a “debt collector” regarding a “debt” as required by 15

U.S.C. § 1692. In addition, Zucker claims that it is not subject to the FDCPA and that

Murdock fails to identify which provision of the FDCPA Zucker allegedly violated. For

these reasons, Zucker moves for dismissal. 

The Court notes that Zucker’s arguments in this regard were not opposed by

Murdock in her opposition brief, as the majority of the brief deals with Zucker’s

arguments related to the law of the case and the statute of limitations. While it appears

that Murdock has not offered any counter point to Zucker’s arguments, the Court need

not reach Zucker’s argument that Murdock fails to state a claim under Fed. R. Civ. P.

12(b)(6) in light of its ruling that such claims are procedurally defaulted under the

statute of limitations. 

IV. Conclusion

For the foregoing reasons, Murdock’s motions to set aside the Court’s August 17,

2011 Order are denied and Zucker’s motion to dismiss is granted. An appropriate Order

shall issue.

Dated: June 20, 2012

 s/ Joseph H. Rodriguez 

Hon. Joseph H. Rodriguez,

United States District Judge

18

Case 1:10-cv-05360-JHR-JS Document 80 Filed 06/20/12 Page 18 of 18 PageID: 3388