Conquest v. WMC Mortgage Corp. (247 F. Supp. 3d 618, 2017)

Citations

247 F. Supp. 3d 618

Full opinion text

OPINION

Slomsky, District Judge

Table of Contents

I. INTRODUCTION... 626

II. BACKGROUND...626

A. Conveyance of the Property and the Terms of the First Mortgage... 626

B. The Fire Insurance Policy.. .628

C. The Second Mortgage Assignment ...629

D. Fire Loss and Insurance Proceeds ...629

E. Alleged Misrepresentations About the Insurance...630

F. The Instant Action... 631

III. STANDARD OF REVIEW... 631

IV. ANALYSIS...632

A. All Claims Made Against MER-SCORP Holding, Inc. Will be Dismissed ...632

B. Count I—Breach of Fiduciary Duty.. .633

1. All Mortgage Defendants—WMC Mortgage LLC (“WMC”), Mortgage Electronic Registration Systems, Inc. (“MERS”), and Vanderbilt Mortgage and Finance (“Vanderbilt”)—did not owe Plaintiff a Fiduciary Duty.. .634

a. A Fiduciary Relationship Did Not Exist.. .634

b. The Mortgage Defendants Were Not Trustees of the Insurance Proceeds ...634

2. HomeFirst Agency, Inc. (“Home-First”) and Southwest Business Corporation (“SWBC”) did not owe Plaintiff a Fiduciary Duty.. .635

3. American Modern Home (“AMH”) did not owe Plaintiff a Fiduciary Duty.. .636

C. Count II—Civil Conspiracy.. .636

1. The Mortgage Defendants did not Engage in Civil Conspiracy.. .637

2. HomeFirst and SWBC did not Engage in Civil Conspiracy... 637

3. American Modern Home did not Engage in Civil Conspiracy.. .638

D. Count III—Breach of Contract. . .638

1. Vanderbilt did not Breach its Contract with Plaintiff... 638

2. WMC and MERS did not Breach a Contract with Plaintiff.., 639

3. HomeFirst and SWBC did not have a Contract with Plaintiff... 640

4. AMH did not have a Contract with Plaintiff.. .640

E. Count IV—Breach of Duty of Good Faith and Fair Dealing.. .640

F. Count V—Negligent Misrepresentation/Fraud. . .641

1. Vanderbilt did not Misrepresent the Terms of the Mortgage or Insurance Coverage.. .642

2. WMC and MERS did not Misrepresent the Terms of the Mortgage... 642

G. Count VI—Unjust Enrichment. . .643

1. The Mortgage Defendants were not Unjustly Enriched... 643

2. HomeFirst and SWBC were not Unjustly Enriched... 643

3.AMH was not Unjustly Enriched ...644

H. Count VII—Trust Liability/Bailment... 644

I. Constructive Trust.. .644

2.Bailment.. .645

I. Count VIII—Diminution in Value and Waste... 645

J. Count IX—Conversion, Theft, and Misappropriation... 646

1. The Claim of Conversion of the Insurance Proceeds by the Mortgage Defendants is Without Merit.. .646

a. WMC and MERS... 646

b. Vanderbilt.. .646

2. Plaintiffs Claim of Criminal Theft Also Fails... 647

3. The Claim of Misappropriation of the Insurance Proceeds is Without Merit...647

K. Count X—Consumer Law Violations... 647

1. The Mortgage Defendants did not Violate the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”).. .647

2. The Pennsylvania Fair Credit Extension Uniformity Act (“PFCEUA”) Claim Will be Dismissed.. .648

3. The Mortgage Defendants did not Violate the Fair Debt Collection Practices Act (“FDCPA”)... 648

4. Plaintiff does not Plausibly Allege a Violation of the Federal Fair Credit Reporting Act. . .648

5. Plaintiff does not Plausibly Allege a Violation of the Real Estate Settlement Procedures Act.. .649

6. The Mortgage Defendants did not Accelerate Plaintiffs Loan under Pennsylvania Code Section 31.203(a)... 649

7. The Mortgage Defendants did not violate the Pennsylvania Usury Law.. .649

L. Count XI—Negligence Per Se...650

V. AMENDING THE AMENDED COMPLAINT WOULD BE FUTILE... 650

VI. CONCLUSION... 650

I. INTRODUCTION

Before the Court are Defendants’ Motions to Dismiss Plaintiffs Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants are WMC Mortgage LLC (Doc. No. 28), Mortgage Electronic Registration Systems, Inc. (“MERS”), MERSCORP Holdings, Inc. (Doc. No. 19), Vanderbilt Mortgage and Finance, Inc. (Doc. No 18), American Modern Home (Doc. No. 14), HomeFirst Agency, Inc. (Doc. No. 20), and Southwest Business Corporation (Doc. No, 17) (collectively “Defendants”).

On May 24, 2016, Plaintiff commenced this action in the Court of Common Pleas of Delaware County. In his Amended Complaint, he alleges that Defendants committed federal and state violations by misappropriating fire insurance proceeds. The fire loss occurred on April 10, 2014 and totally- destroyed Plaintiffs home. Plaintiff claims that Defendants withheld from him the proceeds which would have been used to restore and repair his residential home. (Doc. No. 16 at ¶¶ 10-14.) On June 30, 2016, Vanderbilt Mortgage and Finance, Inc., Mortgage Electronic Registration Systems, Inc, and MERSCORP Holdings, Inc., and HomeFirst Agency, Inc., removed this action to this Court. (Doc. No. 1.)

On August 8, 2016, Plaintiff filed an Amended Complaint. (Doc. No. 16.) Each Defendant responded by filing a Motion to Dismiss the Amended Complaint. (Doc. Nos. 14, 17, 18, 19, 20, 28.) Plaintiff filed a response to each motion (Doc. Nos. 22, 31, 32, 33, 35), and all Defendants submitted replies. (Doc. Nos. 24, 25, 36, 37, 38, 39.) For reasons that follow, the Court will grant the Motions to Dismiss. (Doc. Nos. 14,17,18, 19, 20, 28.)

II. BACKGROUND

A. Conveyance of the Property and the Terms of the First Mortgage

On October 31, 2006, Plaintiffs father conveyed to him the Property located at 613 Summer Street, Media, Delaware County, Pennsylvania 19063 (“Property”), (Doc. No. 16 at ¶ 10.) To accomplish this sale, Plaintiff secured a loan of $272,000 from WMC Mortgage LLC and signed a Mortgage and Promissory Note on November 10, 2006 to cover the purchase of the Property. (Id at ¶ 12.)

The Mortgage was executed in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), solely as nominee for WMC Mortgage LLC (“WMC”), and WMC’s successors and assigns. (Doc. No. 16, Ex. B at 2.) The Mortgage provides in relevant part:

(B) “Borrower” is JERRY A. CONQUEST. Borrower is the mortgagor under this Security instrument.

(C) “MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a separate Corporation that is acting solely as nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint MI 48501-2026, tel. (888) 679-MERS.

(D)“Lender” is WMC MORTGAGE CORP.

(Doc. No. 19, Ex. B at 2.) On November 29, 2006, the Mortgage was recorded with the Delaware County Recorder of Deeds (“Recorder’s Office”). (Id.) The Promissory Note was never recorded with the local recorder of deeds. (Id.)

On June 22, 2011, MERS, as the nominee for WMC, executed an Assignment of Mortgage (“First Assignment”) to Vanderbilt Mortgage and Finance, Inc. (Doc. No. 19, Ex. C at 2.) On July 19, 2011, the First Assignment was recorded with the Delaware County Recorder’s Office. (Id.) Pursuant to the First Assignment, MERS, on behalf of WMC, assigned to Vanderbilt all its right, title, and interest in and to the Mortgage. (Id.)

The Mortgage required that Plaintiff maintain hazard insurance on the Property. It contained the following provision:

Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term “extended coverage,” and any other hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance.

If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender’s option and Borrower’s expense. Lender is under no obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower’s equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.

In the event of loss, Borrower shall give prompt notice to insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender’s security is not lessened ... If the restoration or repair is not economically feasible or Lender’s security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower...

(Doc. No. 19, Ex. B at 6-7.)

B, The Fire Insurance Policy

On April 18, 2012, Vanderbilt notified Plaintiff that it had obtained a lender-placed hazard insurance policy (“Policy”) covering the Property. (Doc. No. 16 at ¶¶ 39-40.) American Modern Home insurance company (“AMH”) issued the Policy to Vanderbilt. (Doc. No. 19, Ex. D at 4.) The Notice of Placement stated that Vanderbilt purchased the Policy because Plaintiff failed to provide adequate proof of hazard insurance covering the Property. (Doc. No. 16, Ex. F.) Vanderbilt obtained the Policy from AMH through two insurance brokers, Southwest Business Corporation (SWBC) and HomeFirst Agency, Inc. (Id. at ¶ 40.) The Notice of Placement contained the insurance certifícate for Plaintiff i to review. (Id.) The certificate stated that the named insured under the Policy was “Vanderbilt Mortgage and Finance Inc.,” the yearly Policy Premium was $1,614, and the insured value of the Property was $161,420. (Doc. No. 19, Ex. D at 4.) Additionally, the Notice of Placement stated that if Plaintiff provided proof of acceptable hazard insurance, the Policy would be canceled. Plaintiff never provided his own hazard insurance .policy. The Policy was renewed twice, first in April 2013 and then in April 2014. (Doc. No. 16 ati44.)

C. The Second Mortgage Assignment

On December 3, 2012, MERS, again as the nominee for WMC, executed a second Assignment of [the] Mortgage to Vanderbilt (“Second Assignment”). (Doc. No. 16, Ex. D at 1.) The Second Assignment was recorded with the local Recorder’s Office on December 19, 2012. (Id.) Pursuant to the Second Assignment, MERS, on behalf of WMC, assigned to Vanderbilt all its right, title, and interest in and to the Mortgage. (Id.)

D. Fire Loss and Insurance Proceeds

On April 10, 2014, the Property was destroyed by an electrical fire. (Doc. No. 16 at ¶ 51.) The fire-resulted in a total loss of Plaintiffs home, (Id. at ¶ 75.) Thereafter, Plaintiff claims he contacted AMH and/or one of the other Insurance Defendants. (Id. at ¶54.) One or more of the Insurance Defendants advised Plaintiff that the insurance proceeds would be paid to Vanderbilt because it was the named insured on the Policy. (Id. at ¶55.) On May 8, 2014, policy proceeds in the amount of $161,420 were disbursed to the named insured, Vanderbilt. (Doc. No. 14 at Ex. F.) Vanderbilt used the insurance proceeds to reduce the Mortgage balance. (Doc. No. 16 at ¶55.) Although the proceeds were insufficient to satisfy the full balance of the Mortgage, Vanderbilt wrote off the remaining balance, and docketed a satisfaction of mortgage form with the Recorder’s Office on July 15, 2014. (Id. at ¶68.) At this point, Plaintiff was no longer liable for mortgage payments on the Property.

In May 2014, Vanderbilt reported to Ex-perian Credit agency that the Mortgage had been “charged off.” (Doc, No. 16, Ex. O at 3.) An Experian report, prepared in 2015 in response to a dispute Plaintiff asserted, states:

Status: Account charged off. $0 written off. This account is scheduled to continue on record until Mar 2020.

Comment: Account information disputed by consumer (Meets requirement of the Fair Credit Reporting Act). This item was updated from our processing of your dispute Nov 2015.

(Id.) Additionally, the Experian report noted that Plaintiffs mortgage payments were “30 days past due” from May 2013 to the date of the “charge off’ in May 2014. (⅞)

E. Alleged Misrepresentations About the Insurance

In order to compel the payment of the insurance proceeds to.him, Plaintiff filed a consumer complaint against Vanderbilt. With the help of the Consumer Financial Protection Bureau (“CFPB”) and the aid of an United States Congressman, Plaintiff filed a Complaint with the CFPB alleging that he did not receive these funds to rebuild his home after a fire loss. (Doc. No. 16 at ¶ 60; Doc. No. 16, Ex. N.) On August 13, 2014, in response to Plaintiffs consumer complaint, Vanderbilt sent him a letter explaining the actions that it had taken following the fire. Vanderbilt’s letter states as follows:

According to VMF’s records the insurance in force at the time of loss was a force-placed insurance policy. This type of policy is put in place when the owner fails to provide proof of insurance coverage for the Property. Please find enclosed a copy of the Mortgage for your review, as well as copies of notices sent to you regarding the force-placed insurance policy. You should-have received a copy of the policy directly from the insurer. The Mortgage states:

[T]he Lender may, but is not obligated to, obtain and pay insurance coverage on behalf of the customer in order to protect their security interest in the Property when sufficient insurance coverage has not been maintained or proof of such coverage has not been provided to the Lender. This coverage may or may not protect the Borrower, their equity in the Property, or contents of said Property, and the cost of this insurance may exceed the cost of similar insurance coverage the Borrower could obtain on their own. Furthermore, the amounts disbursed by Lender would be considered as additional debt of the Borrower and secured by the Mortgage.

VMF was not required to obtain insurance coverage at all, much less insurance that would have protected your interest in the Property. The force-placed policy that VMF procured was a lender interest policy. Accordingly, the insurer paid the insurance proceeds directly to VMF and VMF applied them to the principal balance.

(Doc. No. 16, Ex. N at 2.) No further action was taken against Vanderbilt by the Consumer Financial Protection Bureau or the unnamed United States Congressman regarding the consumer complaint. (Doc. No. 15 at ¶ 103.)

F. The Instant Action

Plaintiff alleges here that Vanderbilt and the other “Mortgage Defendants,” including MERS and MERSCORP Holdings, Inc., should have .given him the insurance proceeds for restoration or repair of the Property. Plaintiff -argues, they “misappropriated the insurance proceeds in violation of the terms of the Mortgage.” (Doc. No. 16 at ¶¶ 57-59.) Plaintiff further alleges that Vanderbilt subsequently made misrepresentations about the terms of the Mortgage and the hazard policy. Plaintiff claims these misrepresentations were made in response to the consumer complaint lodged by him, as justification for Vanderbilt retaining the insurance proceeds. (Id at ¶¶ 60-67.) Plaintiff alleges that Vanderbilt, by writing off the remaining balance of the loan and reporting a “charge-off’ to credit agencies, negatively affected his credit score and his ability to borrow money from other lenders. (Id. at ¶¶ 69-74.)

In separate counts in his Amended Complaint, Plaintiff ■ asserts eleven claims against various Defendants. They are: (1) Breach of Fiduciary Duty; (2) Civil Conspiracy; (3) Breach of Contract; (4) Breach of the Duty of Good Faith and Fair Dealing; (5) Negligent Misrepresenta-tioh/Fraud; (6) Unjust Enrichment; (7) Bailment Liability/Trust Liability; (8) Dimuition [sic] in Value’&'Waste; (9) Conversion, Theft, Misappropriation; (10) Consumer Law Violations; and (11) Negligence Per Se. (Id. at ¶¶ 86-132.)

In response to Plaintiffs Amended Complaint, the Motions to Dismiss were filed. On September 22, 2016, a hearing on the Motions was held. (Doc. No. 40.) The Motions are now ripe for disposition.

III. STANDARD OF REVIEW

The motion to .dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). After ..Iqbal it is clear that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 663, 129 S.Ct. 1937; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “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.” Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013) (citing Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)). “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. Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”

Id. at 130 (quoting Iqbal, 566 U.S. at 675, 679, 129 S.Ct. 1937). “This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike eonclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

A complaint must do more than allege a plaintiffs entitlement to relief, it must “show” such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). “[Wlhere 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 ‘shown’—‘that the pleader is entitled to relief.’ ” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. The “plausibility” determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

The Third Circuit has held that, in addition to the complaint, “a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the document.” Pension Benefit Guar. Corp. v. White Consolidated Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Further, “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.” United States Express Lines v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).

IV. ANALYSIS

A. All Claims Made Against MER-SCORP Holding, Inc. Will be Dismissed

Plaintiffs claims against MER-SCORP will be dismissed. In the Amended Complaint, his sole basis for liability by MERSCORP is that it is the parent company of Mortgage Electronic Registration Systems, Inc. (“MERS”). (Doc. No. 16 at ¶¶ 4, 17.) Plaintiff does' not allege that MERSCORP, in its own capacity, took any action against him regarding the Mortgage, the Policy, or the insurance proceeds. (See generally, Doc. No. 16.) In essence, Plaintiffs claims that MER-SCORP is liable under a theory of guilt by association. However, Plaintiff has failed to plead the nature and extent of the relationship"" between MERS and MERSCORP that would make any claims against MER-SCORP viable.

“It is a general principle of corporate law deeply ‘ingrained in our economic and legal systems’ that a parent corporation ... is not liable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). “Mere ownership of a subsidiary does not justify the imposition of liability on a parent.” Pearson v. Component Tech. Corp., 247 F.3d 471, 484 (3d Cir. 2001). The corporate veil will only be pierced where “the corporate form would otherwise be misused to accomplish certain wrongful purposes, most notablfy] fraud, on the shareholder’s behalf.” CMF Assocs., LLC v. Scout Media, Inc., No. 15-01250, 2015 WL 2125131, at *2 (E.D. Pa. May 6, 2015) (quoting Bestfoods, 524 U.S. at 62, 118 S.Ct. 1876).

The Third Circuit has held that a court must look to the following factors to determine if it may pierce the corporate veil to hold a parent corporation accountable:

gross undercapitalization, failure to observe corporate formalities, nonpayment of dividends, insolvency of debtor corporation, siphoning of funds from the debtor corporation by the dominant stockholder,, nonfunctioning of officers and directors, absence of corporate records, and whether the corporation is merely a facade for the operations of the dominant stockholder.

Pearson, 247 F.3d at 484-85. This intensive fact-based analysis is meant to determine whether the subsidiary’s corporate form is “little more than a legal fiction.” Id. at 485. The plaintiff is responsible for pleading and demonstrating factual allegations about “the nature and extent of the relationship between a parent and its subsidiary corporation.” CMF Assocs., LLC, 2015 WL 2125131, at *3 (quoting Richardson v. CSS Indus., Inc., No. 08-CV-3900, 2009 WL 2230761, at *3 (E.D. Pa. July 27, 2009)).

Here, Plaintiffs sole allegation against MERSCORP is that it is the parent company of MERS. (Doc. No. 16. at ¶¶ 4, 17.) He fails to plead the nature and extent of the relationship between MERSCORP and MERS that would justify piercing the corporate veil to impose liability on MER-SCORP. (See generally, Doc. No. 16.) None of the factors that would justify piercing the corporate veil have been alleged in the Amended Complaint. In the absence of these allegations, “[a] corporation ... is not liable for the acts of its subsidiaries.” Bestfoods, 524 U.S at 61. For this reason, all counts against MER-SCORP Holdings, Inc., will be dismissed.

B. Count I—Breach of Fiduciary Duty

In Count I, Plaintiff alleges that the Mortgage Defendants and the Insurance Defendants breached a fiduciary duty they owed to him. (Doc No. 16 at ¶¶ 87-88.) Plaintiff alleges that the Mortgage Defendants “breached their respective fiduciary duties as trustees of the insurance proceeds causing severe harm to Plaintiff ...” (Id. at ¶ 87.) Plaintiff also alleges that the Insurance Defendants breached their fiduciary duties as insurance carriers by failing to pay to him the insurance proceeds for purposes of restoration and repair of the Property. (Id. at ¶ 88.)

To establish a breach of fiduciary duty under Pennsylvania law, a plaintiff must prove not only a fiduciary duty, but also “(1) that the defendant negligently or intentionally failed to act in good faith and solely for the benefit of plaintiff in all matters for which he or she was employed; (2) that the plaintiff suffered injury; and (3) that the agent’s failure to act solely for the plaintiffs benefit ... was a real factor in bring[ing] about plaintiffs injuries.” Dinger v. Allfirst Fin., Inc., 82 Fed.Appx. 261, 265 (3d Cir. 2003).

The fundamental element to establish a breach of a fiduciary duty is the existence of fiduciary relationship between both parties. Baker v. Family Credit Counseling Corp., 440 F.Supp.2d 392, 414-16 (E.D. Pa 2006). A claimant cannot re-cóver if they are unable to prove a fiduciary duty exists between the parties. Id. A fiduciary relationship exists “whenever one occupies toward another such a position of adviso'r or .counselor as reasonably to inspire confidence that he will; act in good faith for the other’s [best] interest.” Id. at 416 (citing Silver v. Silver, 421 Pa. 533, 219 A.2d 659, 662 (1966); Basile v. H&R Block, Inc., 777 A.2d 95, 101-02 (Pa. Super. Ct. 2001)).

a. A Fiduciary Relationship Did Not Exist

Plaintiff fails to establish' the existence of a fiduciary relationship with WMC, MERS, and Vanderbilt. Under Pennsylvania law, it is well established that a lender does not owe a fiduciary duty to a borrower. Allen v. Wells Fargo, N.A., No. 14-5283, 2015 WL 5137953, at *5 (E.D. Pa. Aug. 28, 2015) (“Under Pennsylvania law, a lender generally does not owe a duty to a borrower.”); see also Schnell v. Bank of N.Y. Mellon, 828 F.Supp.2d 798, 806 (E.D. Pa. 2011) (denying plaintiffs negligent misrepresentation claim under Pennsylvania law against lender because “a lender acts in his financial interest and does not owe a fiduciary duty to the borrower.”); Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super, 455,410 A.2d 344, 348 (1979) (“[T]he relationship between the borrower and lender does not create a confidential relationship.”). Here, according to, the Amended Complaint, WMC was the. lender and Plaintiff was the borrower. (Doc. No. 16 at ¶ 12.) Their relationship was merely an arm’s length one of lender and borrower. Thus, WMC did not owe a fiduciary duty to Plaintiff.

' Moreover, a fiduciary-relationship did not exist between Plaintiff and Vanderbilt, Pennsylvania law does not recognize the: existence of a fiduciary' relationship between a mortgagee and a mortgagor. See, e.g., Schnell, 828 F.Supp.2d at 806 (citing Federal Land Bank of Baltimore, 410 A.2d at 344); Caplen v. Sec. Nat’l Servicing Corp., 514 F.Supp.2d 746, 752 (E.D. Pa. 2007). In addition, Plaintiff had no fiduciary relationship with WMC and MERS at the time of the fire loss. MERS, in its nominee capacity, assigned the WMC Mortgage to Vanderbilt, and. both WMC and MERS did not hold an interest in the Mortgage when the fee occurred. (Doc. No. 19, Ex. C at 2; Doc. No. 16, Ex. D at 1.) Therefore, no fiduciary duty could exist between them at that time. (Doc. No. 15 at ¶¶ 10-85.) Accordingly, Plaintiff has failed to allege a fiduciary relatiohship with WMC, Vanderbilt, and MERS.

b. The Mortgage Defendants . Were Not Trustees of the . Insurance Proceeds

Plaintiff also alleges that WMC, MERS, and Vanderbilt were fiduciaries because these three entities were trustees of the insurance proceeds. Neither WMC nor MERS nor Vanderbilt ever servéd as trustees of the insurance proceeds. Plaintiff does not allege any facts to support this claim. (See generally, Doc. No. 16.) Furthermore, WMC and MERS never received the insurance proceeds.

Additionally, the Court in Caplen v. Sec. Nat’l Servicing Corp. noted:

At least one court has held that the force-placed insurance arrangement does create a fiduciary duty between homeowner and lender ... However, even if a fiduciary relationship was formed by the lender’s contractual undertaking to purchase insurance on the collateral, that duty would not have extended beyond the obligations laid out by the unambiguous language of the mortgage and note: that insurance be purchased to cover up to the existing principal balance on the mortgage loan in the event that no other insurance paid out to cover those damages.

Caplen v. Sec. Nat’l Servicing Corp., 514 F.Supp.2d 746, 752 (E.D. Pa. 2007).

Here, the Mortgage specifically provided that the mortgagee had the option to purchase hazard insurance if Plaintiff failed to secure it, and to use the funds to pay down the mortgage if the destruction of the Property made it economically unfeasible to repair. Thus, Vanderbilt had no obligation to protect Plaintiffs interest in the Property if there was a total destruction. (Doc. No. 16, Ex. B at 4-5.) Accordingly, Vanderbilt satisfied its obligation under the Mortgage and did not owe Plaintiff a duty once the Property was totally destroyed. Consequently, Plaintiffs claim of a breach of fiduciary duty against WMC, MERS, and Vanderbilt will be dismissed.

2. HomeFirst Agency, Inc. (“Home-First”) and Southwest Business Corporation (“SWBC”) did not owe Plaintiff a Fiduciary Duty

Plaintiff fails to establish the existence of a fiduciary relationship with Ho-meFirst or SWBC. HomeFirst and SWBC are not insurers. (Doc. No. 20, Ex. E at 2.) Plaintiffs only claim against HomeFirst and SWBC is that they are “insurance broker[s] ... in relation to the insurance policy at issue.” (Doc. No. 16 at ¶ 6.) Viewing the facts in the light most favorable to Plaintiff, he fails to allege the existence of a fiduciary or even a direct relationship with HomeFirst or SWBC. (See generally, Doc. No. 16.) Merely stating that they are insurance brokers is not sufficient to create such relationships. As Defendant SWBC correctly notes in its Memorandum of Law:

Under Pennsylvania law, there is no duty of care owed by -an insurance broker or agent to ensure that homeowners’ insurance coverage is obtained on behalf of a third-party borrower. See Acme-Hardesty Co., v. Wenger, 2003 WL 1847461 at *4 (Pa. C.P. 2003) (“Insurers, and insurance brokers, do not have a general affirmative social duty to undertake risk assessments and to provide insurance coverage to members of the public or their indemnitees with whom they have no other relationship.”) and Sovereign Bank v. BJ’s Wholesale Club, Inc., 395 F.Supp.2d 183, 197 (M.D. Pa. 2005). The duty of care owed by an insurance agent or broker is owed solely to the customer/insured, who retains their services' to secure insurance on their behalf.

(Doc. No. 17-1 at 9.) See also Harold ex rel. Harold v. McGann, 406 F.Supp.2d 562, 577 (E.D. Pa. 2005) (dismissing plaintiffs claim for breach of fiduciary duty where plaintiff failed to plead facts supporting the existence of a confidential relationship). Therefore, the. claim in Count I against HomeFirst and SWBC for breach of fiduciary duty will be dismissed.

3. American Modern Home (“AMH”) did not owe Plaintiff a Fiduciary Duty

Plaintiffs breach of fiduciary duty claim against AMH fails because Pennsylvania law ordinarily does not recognize the existence of a fiduciary duty arising in a first-party insurance claim. A first-party insurance claim involves the named policyholder bringing suit against the insurance carrier. Polito v. Continental Cas. Co., 689 F.2d 457, 459-60 (3d Cir. 1982). Pennsylvania law only recognizes a fiduciary duty by an insurer to its insured in the context of a third-party claim made under a liability insurance policy. A third-party insurance claim involves someone other than the policy holder bringing suit against the insurance carrier, such as an injured passenger in motor vehicle accident. See Daniel P. Fuss Builders-Contractors Inc. v. Assurance Co. of Am., No. 06-1182, 2006 WL 2372226, at *1-3 (E.D. Pa. Aug. 11, 2006). In this regard:

Under Pennsylvania law, a fiduciary duty ... does not arise out of an insurance contract until an insurer asserts a stated right under the policy to handle all claims asserted against the insured.

See Keefe v. Prudential Prop. & Cas. Ins. Co., 203 F.3d 218, 227-28 (3d Cir. 2000); see also Hayes v. Am. Int’l Group, No. 09-2874, 2014 WL 3746813, at *18 (E.D. Pa. July 29, 2014) (“[A]n insurer does not have a fiduciary duty to an insured, except in limited circumstances such as where the insurer asserts a right to defend claims against the insured.”).

Here, Plaintiff asserts that AMH breached its fiduciary to duty him in his capacity as an alleged beneficiary of the insurance policy, which is a first-party insurance claim. Under Pennsylvania law, this situation does not create a fiduciary relationship between Plaintiff and AMH. Keefe, 203 F.3d at 227-28 (there is no fiduciary duty for first-party insurance claims). Therefore, Plaintiffs claim for breach of fiduciary duty against AMH will be dismissed.

C. Count II—Civil Conspiracy

In Count II, Plaintiff alleges that the “Mortgage Defendants [and the Insurance Defendants] combined to do an unlawful act (or used unlawful means) to deprive Plaintiff of the restoration and repair [insurance] proceeds.” (Doc. No. 16 at ¶¶ 90, 92.)

Under Pennsylvania law, to establish a prima facie case of civil conspiracy, a plaintiff must first allege: “(1) a combination of two or more persons acting with a common purpose to do an unlawful act by unlawful means or for an unlawful purpose; (2) an overt act done in furtherance of the common purpose; and (3) actual legal damage.” General Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003); see also Skipworth by Williams v. Lead Indus. Ass’n, Inc., 547 Pa. 224, 690 A.2d 169, 235 (1997); see generally Sarpolis v. Tereshko, 625 Fed.Appx. 594 (3d Cir. 2016). In order to adequately plead conspiracy:

[t]he allegations must be sufficient to describe the general composition of the conspiracy, some or all of its broad objectives, and the defendant’s general role in that conspiracy.

Rose v. Bartle, 871 F.2d 331, 336 (3d Cir. 1989). “[P]roof of conspiracy must be made by full, clear and satisfactory evidence.” Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct. 2008).

Additionally, “[p]roof of malice is an essential part of a cause of action for conspiracy.” Sarpolis, 625 Fed.Appx. at 601 (citing Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. Ct. 2004)). Malice is found where the conspirators act with the sole purpose of injuring the plaintiff without a justification. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 472 (1979). Malice is not found where there are facts establishing that the person acted for professional reasons and not solely to injure the plaintiff. Bro-Tech Corp. v. Thermax, Inc., 651 F.Supp.2d 378, 419 (E.D. Pa. 2009).

1. The Mortgage Defendants did not Engage in Civil Conspiracy

Plaintiff fails to allege that WMC, MERS, and Vanderbilt engaged in a civil conspiracy against him. (Doc. No. 16 at ¶ 91.) The only evidence of alleged collusion between any of the Mortgage Defendants is the two assignments of the Mortgage. However, Plaintiff fails to plead plausible facts demonstrating that the assignments were for the sole purpose of injuring him. In fact, Plaintiff provides no evidence that these transactions were anything other than regular business dealings. No plausible unlawful means or purpose is alleged.

WMC executed the loan agreement with Plaintiff and designated MERS as its nominee. (Doc. No. 16, Ex. B at 2.) MERS, whose primary business function as noted by the Third Circuit is to transfer mortgage interests, assigned WMC’s interest in the Mortgage to Vanderbilt. Vanderbilt then insured its interest in the Property through a force-placed hazard insurance policy on the Property when Plaintiff failed to do so. (Doc. No. 16, Ex. F; Id. at ¶ 39.) The Mortgage Defendants engaged in these acts for their own legitimate business reasons and not to harm Plaintiff. No unlawful purpose or means has been plausibly alleged in the Amended Complaint by Plaintiff.

Moreover, Plaintiff has failed to plausibly allege that the Mortgage Defendants acted with malice. As stated in Thompson Coal Co., malice cannot be established where the defendant acted for professional reasons. 412 A.2d at 472-73. See Fleet Nat’l Bank v. Boyle, No. 04-1277, 2005 WL 2455673, at *12 (E.D. Pa. 2005) (dismissing a civil conspiracy claim where allegations demonstrated the defendant’s actions were intended to advance their own business, and therefore, plaintiff could not establish requisite malice). Here, Plaintiff fails to allege any facts that suggest the Mortgage Defendants acted contrary to their own legitimate business interests or with the sole intent to harm him. (See generally, Doc. No. 16.) For these reasons, Plaintiff fails to allege that WMC, MERS, or Vanderbilt acted with malice. Accordingly, the civil conspiracy claim in Count II will be dismissed as to these Defendants.

2. HomeFirst and SWBC did not Engage in Civil Conspiracy

Plaintiff also fails to sufficiently allege that the actions of HomeFirst and SWBC were part of an alleged conspiracy or that they acted with the sole intent to injure him. Plaintiff alleges that “[t]he Insurance Defendants together with the Mortgage Defendants combined to do an unlawful act (or used unlawful means) to deprive Plaintiff of restoration and insurance proceeds.” (Doc. No. 16 at ¶92.) However, as noted above, Plaintiffs only specific allegation regarding HomeFirst and SWBC is that they are “insurance broker[s] ... in relation to the insurance policy at issue.” (Id. at ¶ 6.) Plaintiff does not assert any specific unlawful actions taken by HomeFirst and SWBC in connection with the alleged conspiracy.

In addition, Plaintiff fails to assert that HomeFirst and SWBC acted with the sole intent to injure Plaintiff. Again, as Plaintiff admits, HomeFirst and SWBC are merely “insurance broker[s].” (Doc. No. 16 at ¶ 6.) ■The only action taken by HomeFirst and SWBC was facilitating the purchase of the force-placed hazard policy. (Id. at II40.) HomeFirst and SWBC were therefore acting pursuant to their normal business interests. No plausible- claim of malice is alleged in the Amended Complaint. Accordingly, the civil conspiracy claim in Count II against HomeFirst and SWBC will be dismissed.

3. American Modern Home did not Engage in Civil Conspiracy

Plaintiff also does not plausibly allege that AMH acted with the sole intent to injure Plaintiff through an unlawful means or with an unlawful purpose. Plaintiff merely alleges that AMH sent the insurance proceeds to Vanderbilt instead of disbursing the funds to him. (Doc. No. 16 at ¶ 92.) Here, AMH’s only action was properly paying the insurance proceeds to Vanderbilt, the only named payee on the insurance policy. (Doc. No. 20, Ex. D at 2.) When AMH paid the insurance proceeds, it was doing what it was contractually obligated to do. AMH was acting in its own legitimate business interest by honoring the terms of the force-placed hazard policy. Thus, viewing the facts alleged in the light most favorable to Plaintiff, he fails to plead any facts showing that AMH acted with malice toward him or engaged in an unlawful means to pursue an illegal purpose. (Doc. No. 16 at ¶¶ 10-85.) As a result, Plaintiff fails to state a plausible claim for civil conspiracy against AMH in Count II.

D. Count III—Breach of Contract

In Count III, Plaintiff alleges the Mortgage Defendants breached the mortgage contract “by misappropriating the restoration and repair proceeds, ... by not' paying taxes from escrow, and by making material misrepresentations concerning the authorization to do such acts.” (Doc. No. 16 at ¶ 95). In addition, Plaintiff alleges the Insurance Defendants breached the insurance agreement by. giving the proceeds to Vanderbilt and by enabling Vanderbilt to become the sole beneficiary of the policy. (Id. at ¶ 96.)

To establish a breach of contract claim:

Pennsylvania law requires that a plaintiff seeking to proceed with a breach of contract action must establish “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contradi,] and (3) resultant damages.”

Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003) (quoting CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999)). “It is fundamental contract Jaw that one cannot be liable for a breach of contract unless one is a party to that contract.” Electron Energy Corp v. Short, 408 Pa.Super. 563, 597 A.2d 175, 177 (1991), aff'd, 533 Pa. 66, 618 A.2d 395 (1993).

1. Vanderbilt did not Breach its Contract with Plaintiff

Plaintiff claims that ‘ Vanderbilt breached its mortgage contract by using the insurance proceeds to protect its own interest in the Property. (Doc. No. 16 at ¶ 95.) Plaintiff was not entitled to the insurance proceeds because the mortgage did not require the force-placed hazard policy to cover him if there was a total loss of the Property. In addition, the funds were properly used under the terms of the policy to pay down the mortgage.

The Mortgage required Plaintiff to place hazard insurance on his Property. (Doc. No. 19, Ex. B at 6-7) (“Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire ... ”),) Plaintiff admits that he failed to obtain fire insurance for the house and as a result, Vanderbilt obtained an insurance policy to protect itself in accordance with the terms of the Mortgage. (Doc. No. 16 at ¶ 39.) When the fire loss occurred, the insurer, American Modern Home, paid the insurance proceeds to Vanderbilt, who used the funds to satisfy in part its own interest in the Property.

Vanderbilt’s actions were expressly authorized by the Mortgage:

(Doc. No. 19, Ex. B at 6-7). Accordingly, because there was a total loss of the Property making it economically unfeasible to restore and repair, Vanderbilt acted within the terms of the Mortgage by using the proceeds to pay down the mortgage. This use did not constitute a breach of the Mortgage contract.

Furthermore, Vanderbilt’s actions are not inconsistent with the law regarding force-placed insurance policies. See Montanez v. HSBC Mortgage Corp, (USA), 876 F.Supp.2d 504, 508 (E.D. Pa. 2012) (observing that “[t]he purpose of force-placing insurance is to protect the lender’s security interest in the property in the event the borrower fails to insure the property adequately.”). Accordingly, Vanderbilt acted within the terms of the Mortgage and did not breach it. Plaintiffs claim for breach of contract against Vanderbilt will be dismissed.

2. WMC and MERS did not Breach a Contract with Plaintiff

Plaintiffs claims of breach of contract against WMC and MERS will be dismissed because they were not in a contractual relationship with Plaintiff at the time of the fire loss. First, WMC did not have an interest in the Mortgage at the time of the fire loss. At the time of the loss, the Mortgage had been transferred to Vanderbilt. Therefore, WMC had no relationship with Plaintiff under a contract. In the absence of a contractual relationship, no breach of contract claim can exist. See Electron Energy Corp., 597 A.2d at 178 (holding that a party was not liable for breach of contract because he was not a party to the contract).

Second, MERS had no contractual relationship with Plaintiff at the time of the fire loss. On June 22, 2011, MERS, in its nominee capacity for WMC, assigned all its right, title, and interest in the Mortgage to Vanderbilt Mortgage and Finance, Inc. (Doc. No. 16, Ex. B at 2.) Therefore, when the fire loss occurred, MERS had no contractual relationship with Plaintiff. In the absence of a contractual relationship, MERS did not breach the terms of the contract. See Electron Energy Corp., 597 A.2d at 178. Accordingly, Plaintiffs breach of contract claims against WMC and MERS will be dismissed.

8. HomeFirst and SWBC did not have a Contract with Plaintiff

Plaintiffs breach of contract claim against HomeFirst .and SWBC fails because they were not parties to the insurance contract. They did not provide the insurance and were not the named insureds. (Doc. No. 16 at ¶ 97.) According to Plaintiff, HomeFirst and SWBC were merely “insurance broker[s].” (Id. at ¶ 6.) Consequently, HomeFirst and SWBC cannot be liable for breach of contract when they were not parties to the insurance contract and had no contractual relationship with Plaintiff. See, e.g., Reeves v. Middletown Ath. Ass’n, 866 A.2d 1115, 1125 (Pa. Super. Ct. 2004) (“It is undisputed that a written contract did not exist ... [the plaintiff] cannot prevail on a breach of contract claim because no contract existed ...”). For this reason, Plaintiffs breach of contract claim against HomeFirst and SWBC will be dismissed.

4. AMH did not have a Contract with Plaintiff

Plaintiffs claim for breach of contract against AMH also will be dismissed because he did not have a contractual relationship with AMH. The Evidence of Insurance form states that the insured under the policy agreement was Vanderbilt, not Plaintiff. (Doc. No. 19, Ex. D at 4.) Even if Plaintiff is considered a party to the insurance contract as a beneficiary, AMH did not breach the insurance contract because it had the right under its terms to pay the proceeds to Vanderbilt. (Doc. No. 20, Ex. D at 2.) For these reasons, Plaintiffs claim for breach of contract against AMH will be dismissed. See, e.g., Reeves, 866 A.2d at 1125.

E. Count IV—Breach of Duty of Good Faith and Fair Dealing

Plaintiff alleges a breach of the duty of good faith and fair dealing as follows:

The mortgagee defendants breached the mortgage contract (i.e. the security document) by misappropriating the restoration and repair proceeds and by not paying the taxes from escrow and by making material misrepresentations concerning the authorization to do such acts. The mortgagee defendants also breached the contract by wrongfully accelerating the loan repayment schedule and by characterizing the satisfaction as a charge off. To the extent that no express contract is found between Plaintiff and any of the mortgage defendants (or their respective principles in agency), Plaintiff asserts that those defendants maintain a common law duty to act in good faith which was violated...

(Doc. No. 16 at ¶ 99.)

The claim of not acting in good faith and not dealing fairly cannot proceed against Defendants because based on the facts pled, Defendants acted properly and did not breach any duty of good faith or fair dealing. Defendants did not misappropriate the insurance proceeds or make material misrepresentations about their right to the proceeds and payment of taxes from escrow. Moreover, Defendants never accelerated loan repayments from Plaintiff, and characterizing the satisfaction of the loan as a charge-off was proper. It was unlikely that Plaintiff would continue to pay the Mortgage to reduce the outstanding debt after the insurance proceeds were applied, and Vanderbilt forgave the payment of the balance of the Mortgage by Plaintiff. Using the term charge-off to characterize this situation was not an act of bad faith. Accordingly, Count IV alleging a breach of good faith and fair dealing against all Defendants will be dismissed.

F. Count V—Negligent Misrepresentation/Fraud

In Count V, Plaintiff claims that the “Mortgage Defendants negligently and/or fraudulently mischaracterized the terms of the security agreement and the terms of the insurance policy to justify their illegal retention of the proceeds.” (Doc. No. 16 at ¶ 103.) While Plaintiff groups misrepresentation and fraud together, they are separate causes of action. However, because each claim requires Plaintiff to plead a misrepresentation and Plaintiff fails to do so, they will be addressed together.

To state a claim for negligent misrepresentation, a plaintiff must allege: “(1) a misrepresentation of material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.” Bilt-Rite Contractors, Inc. v. Architectural Studio, 581 Pa. 454, 866 A.2d 270, 277 (2005). Similarly, the elements for a fraudulent misrepresentation are:

(1) a representation; (2) material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) a resulting injury proximately caused by the reliance.

Patel v. Patel, No. 14-5845, 2016 WL 3000821, at *12-13 (E.D. Pa. May 25, 2016) (citing Ira G. Steffy & Son, Inc. v. Citizens Bank of Pa., 7 A.3d 278, 290 (Pa. Super. Ct. 2010)).

1. Vanderbilt did not Misrepresent the Terms of the Mortgage or Insurance Coverage

Plaintiffs misrepresentation and fraud claims against Vanderbilt fail because the Amended Complaint does not plausibly establish that Vanderbilt misrepresented to him the terms of the Mortgage or the insurance policy issued by AMH. Plaintiffs allegations of misrepresentation relate to Vanderbilt’s August 13, 2014 letter sent to Plaintiff after he filed a complaint with the Consumer Financial Pro-teetion Bureau. (Doc. No, 16 at ¶ 56, 61.) In the letter, Vanderbilt used language that covered the terms of the mortgage and insurance policy. (Doc. No. 16, Ex. N at 2,) The, Mortgage expressly authorized Vanderbilt to purchase a force-placed insurance policy to protect its own financial interest in the Property. (Doc. No. 19, Ex. B at 6.) No material misrepresentation was made in this letter. Therefore, Plaintiffs claim for negligent misrepresentation and fraud will be dismissed against Vanderbilt.

2. WMC and MERS did not Misrepresent the Terms of the Mortgage

Plaintiff fails to plausibly allege in the Amended Complaint a misrepresentation made by WMC or MERS to Plaintiff regarding the Mortgage. (Doc. No 16 at ¶¶ 10-104.) The only representation made by WMC, MERS, or Vanderbilt about the terms of the Mortgage stem from allegations concerning Vanderbilt. WMC and MERS are not alleged to have been the subject of Plaintiffs complaint to the CFPB. Plaintiff has not pled statements by WMC or MERS that were misrepresentations. In the.absence of a specific misrepresentation, Plaintiffs claim is not legally cognizable. See Progress Federal Savings Bank v. Lenders Ass’n, Inc., No. 94-7425, 1995 WL 94788, at * 2 (E.D. Pa. Mar. 6, 1995) (granting defendant’s motion to dismiss on a claim of misrepresentation for failure to allege a specific misrepresentation made by the defendants to the plaintiff). Therefore, Plaintiffs claims for negligent misrepresentation and fraud against WMC and MERS will be dismissed.

G. Count VI—Unjust Enrichment

Sixth, Plaintiff alleges as his unjust enrichment claim that “[t]he Mortgage Defendants received a benefit from the insurance proceeds ... [and] also received a benefit from the interest payments paid by [Plaintiff] under the terms of the security document.” (Doc. No. 16 at ¶ 106.) Plaintiff further alleges that “[t]he Insurance Defendants received a benefit from the insurance premiums.” (Id. at ¶ 107.) The elements necessary to prove unjust enrichment are:

(1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under, such circumstances that it would be inequitable for defendant to retain the benefit without payment of value .,. The application of the doctrine depends on the particular factual circumstances of the case at issue. In determining if the doctrine applies, our focus is not on the intention of the parties, but rather on whether the defendant has been unjustly enriched. '

Durst v. Milroy Gen Contracting, Inc., 52 A.3d 357, 360 (2012) (quoting Schenck v. K.E. David, Ltd., 446 Pa.Super. 94, 666 A.2d 327, 328 (1995)). The doctrine of unjust enrichment is “inapplicable when the relationship between parties is founded on a written agreement or express contract.” Benner v. Bank of Am., N.A., 917 F.Supp.2d 338, 360 (E.D. Pa. 2013) (stating that Pennsylvania law precludes a claim for unjust enrichment where the relationship between the parties is based bn a written contract); Schott v. Westinghouse Elec. Corp., 436 Pa. 279, 259 A.2d 443, 448-49 (1969).

1. The Mortgage Defendants were not Unjustly Enriched

Plaintiffs claim for unjust enrichment fails against WMC, MERS, and Vanderbilt because his claims are based on written contracts, the Mortgage and the insurance policy. As the Pennsylvania Supreme Court has held and this Court has recognized, the doctrine of unjust enrichment is “inapplicable when the relationship between parties is founded on a written agreement or express contract.” Benner, 917 F.Supp.2d at 360; Schott, 259 A.2d at 448-49. Additionally, Plaintiffs claims against WMC and MERS fails because WMC and MERS were never in possession of the insurance proceeds. (Doc. No. 16 at ¶¶ 10-110.) The proceeds were paid to Vanderbilt and WMC and MERS were never enriched by the proceeds at all. For these reasons, Count VI will be dismissed against WMC, MERS, and Vanderbilt.

2. HomeFirst and SWBC were not Unjustly Enriched

Plaintiff fails to establish that any benefit was unjustly conferred upon Ho-meFirst or SWBC. Instead, Plaintiff claims “[t]he Insurance Defendants received a benefit from the insurance premiums.” (Doc. No. 16 at ¶¶ 107-110.) Here, HomeFirst and SWBC were brokers who placed the insurance for Vanderbilt with AMH. Apparently, they were paid for their services as brokers in placing the insurance and did not receive proceeds from the insurance claim. As a result, Plaintiffs claim that HomeFirst, and SWBC were unjustly enriched is without merit.

3. AMH was not Unjustly Enriched

Plaintiff fails to plausibly explain in the Amended Complaint how AMH was unjustly enriched. AMH’s sole source of enrichment in this case was the Policy premiums paid by Vanderbilt. Viewing the facts in the light most favorable to Plaintiff, he fails to plead how AMH, while acting within the normal course of its business as an insurer, received an unjust benefit. AMH was paid for services rendered and properly paid the insurance proceeds to Vanderbilt after the fire loss. For this reason, Plaintiffs claim for unjust enrichment against AMH also fails.

H. Count VII—Trust Liability/Bailment

1. Constructive Trust

There are no plausible allegations that the Mortgage Defendants were unjustly enriched and therefore Plaintiffs request for an imposition of a constructive trust will be dismissed. In Count VII, Plaintiff alleges the “Mortgage Defendants received the insurance proceeds to hold for a particular purpose (i.e. restoration & repair). A demand for those proceeds was made repeatedly by Plaintiff and denied by the Mortgage Defendants.” (Doe. No. 16 at ¶ 112.) Plaintiff additionally asserts that the “[e]ven without an express provision [to hold the insurance proceeds], a constructive trust exists.” (Id at ¶ 113.) Essentially, Plaintiff is arguing that the Mortgage Defendants owed him the proceeds of the insurance contract because a constructive trust existed.

“A constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” Pierro v. Pierro, 438 Pa. 119, 264 A.2d 692, 696 (1970). Under Pennsylvania law, a constructive trust works in tandem with unjust enrichment, and for a constructive trust to be plausible, the elements of unjust enrichment must be adequately pled. Kern v. Kern, 892 A.2d 1, 8-9 (Pa. Super. Ct. 2005); Shepley v. Dobbin, 351 Pa.Super. 182, 505 A.2d 327, 330 (1986) (“Equity will impose a constructive trust under appropriate circumstances. However, our case law is exigent in demanding evidence of unjust enrichment before a trust will be created.”). Essentially, without a properly pled argument for unjust enrichment, there can be no argument for a constructive trust against the Mortgage Defendants.

Plaintiffs claim for imposing a constructive trust is unpersuasive. As noted above, under Pennsylvania law, constructive trusts work in tandem with unjust enrichment claims. For a constructive trust to be imposed, the elements of unjust enrichment must be adequately alleged. Kern, 892 A.2d at 8-9; Shepley, 505 A.2d at 330. As previously determined, Plaintiffs claim against the Mortgage Defendants for unjust enrichment is deficient because the claim is based on a written contract. Because a written contract exists, no constructive trust can be created. Moreover, no plausible allegation that the Mortgage Defendants have been unjustly enriched has been set forth in the Amended Corn-plaint. Accordingly, Plaintiffs request for an imposition of a constructive trust on WMC, MERS, and Vanderbilt will be dismissed.

2. Bailment

No bailment was created with Vanderbilt because the insurance contract entitled Vanderbilt to the insurance proceeds.

In Lear v. Eddy, the Pennsylvania Superior Court found that:

A bailment is a delivery of a personalty for the accomplishment of some purpose upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, otherwise dealt with it according to his directions or kept until he reclaims it.

749 A.2d 971, 973 (Pa. Super. Ct. 2000) (quoting Price v. Brown, 545 Pa. 216,680 A.2d 1149, 1151-52 (1996)). Plaintiff asserts that the “Mortgage Defendants received the insurance proceeds to hold for a particular purpose (i.e. restoration & repair),” and these funds should have been turned over to him. (Doc. No. 16 at ¶ 111.) Plaintiff, however, fails to allege any facts showing that WMC or MERS received any insurance proceeds, the subject of the bailment. Second, no bailment was created with Vanderbilt because the insurance contract entitled Vanderbilt to receive the insurance proceeds. Based on the plain language of the Mortgage and the Policy, Vanderbilt was legally entitled to the proceeds as the named insured. Since the Property was totally destroyed, Vanderbilt was entitled to apply the proceeds to the amount due under the mortgage it held. Therefore, Plaintiffs claim for a bailment will be dismissed.

I. Count VIII—Diminution in Value and Waste

Count VII of the Amended Complaint alleges that the Mortgage Defendant’s “misappropriation of the insurance proceeds resulted in diminution in value and waste of real property.” (Doc. No. 16 at ¶¶ 116-17.)

Under Pennsylvania law, diminution in value is a measure of damages. Centolanza v. Lehigh Valley Dairies, Inc., 540 Pa. 398, 658 A.2d 336, 338 (1995) (stating that the trial court properly determined that the plaintiffs claim for diminution in value of property is a “claim for damages and not [a] cause of action.”) Therefore, no claim can be asserted against any Defendant for diminution in value of the real estate as a cause of action. Id.

To establish a cause of action for waste, a plaintiff must prove: “an act constituting waste, done by one legally in possession of the property, prejudicial to the estate or interest of another.” Versatile Metals, Inc. v. Union Corp., No. 85-4085, 1985 WL 47, at *1 (E.D. Pa. Dec. 9, 1985). Here, Plaintiff does not plausibly allege in the Amended Co