Blake v. Bank of Am., N.A.

• Citation: 845 F.Supp.2d 1206
• Decision Date: 27 February 2012
• Docket Number: Case No. 3:11–cv–242–MEF.
• Parties: Susan H. BLAKE, Plaintiff, v. BANK OF AMERICA, N.A., et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

845 F.Supp.2d 1206

Susan H. BLAKE, Plaintiff,

v.BANK OF AMERICA, N.A., et al., Defendants.

Case No. 3:11–cv–242–MEF.

United States District Court,

M.D. Alabama,

Eastern Division.

Feb. 27, 2012.

Christina Diane Crow, Nathan Andrew Dickson, II, Jinks Crow & Dickson, PC, Union Springs, AL, Larry Shane Seaborn, Penn and Seaborn, LLC, Clayton, AL, Nicholas Heath Wooten, Wooten Law Firm PC, Auburn, AL, for Plaintiff.

Mary Colleen Beers, Alan Michael Warfield, Barry Addis Brock, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP, Birmingham, AL, for Defendants.

Memorandum Opinion and Order

MARK E. FULLER, District Judge.

I. Introduction

This cause comes before the Court on the Motion to Dismiss (Doc. # 4) filed by the defendants, Bank of America, N.A. (“BANA”) and BAC Home Loans Servicing, L.P. (“BAC”). They contend that the plaintiff, Susan Blake, has failed to state a valid claim in any of the counts in her complaint. Blake agrees that her claim for injunctive relief should fail, but contends that she has alleged sufficient facts for her other claims to survive the defendants' motion. After careful consideration of the parties' arguments and the relevant law, the Court finds that BANA and BAC's motion is due to be GRANTED IN PART and DENIED IN PART as set out below.

II. Jurisdiction and Venue

The Court has subject-matter jurisdiction over this case under 28 U.S.C. § 1332(a). ( See Doc. # 23 (denying remand motion and finding Court has subject-matter jurisdiction).) The parties do not contend that the Court lacks personal jurisdiction over them, nor do they dispute that venue is proper.

III. Legal Standard

A motion to dismiss mainly tests the legal sufficiency of the complaint. Fed.R.Civ.P. 12(b)(6). It does not delve into disputes over the proof of the facts alleged—such a crucible is reserved for the summary judgment stage. With this in mind, the Court accepts as true all well-pled factual allegations in the complaint, viewing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.2008); Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir.2007). And while a court typically keeps its motion to dismiss inquiry within the four corners of the complaint, the Court may nonetheless consider an outside document when it is undisputed and central to the plaintiff's claims. Speaker v. U.S. Dep't of Health & Human Servs., 623 F.3d 1371, 1379–80 (11th Cir.2010). The Court will grant a motion to dismiss “when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Marshall Cnty. Bd. of Ed. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993).

A motion to dismiss also requires compliance with some minimal pleading standards. Indeed, although a plaintiff's complaint generally need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), the plaintiff must still allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). And “[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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). The plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 559, 127 S.Ct. 1955. Nor does it suffice if the pleadings merely leave “open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.” Id. at 561, 127 S.Ct. 1955.

IV. Background ¹

Susan Blake bought her home like most people do: by executing a promissory note and granting a mortgage on the home to secure her repayment obligation. Blake chose Auburn Bank as her initial lender in 1997. Nine years later, she refinanced her home with Countrywide Home Loans (“Countrywide”). Blake experienced significant financial hardship about three years after that, and in August of 2008, she contacted Best Interest Mortgage Company (“Best Interest”) to help her modify her agreement with Countrywide. At this point, Best Interest charged her $1,500, agreed to provide loan modification services, and told Blake not to contact or pay her lender while the company took steps to arrange the loan modification. Meanwhile, BANA assumed Countrywide's assets and liabilities after the two merged.

Blake followed the advice about not paying her loan, and about three months later, Best Interest told her that she qualified for a modification and that she should expect to receive some paperwork to sign to complete the process. When the paperwork did not arrive on time, Blake called Best Interest who, in turn, called BANA. The bank responded by telling Blake that it had her modification application under review and would contact her shortly.

Six months passed before Blake heard about the situation again. She received a letter from BANA giving her notice of its intent to accelerate; the letter also informed her that she had options available to her for repayment plans or loan modification. BANA contacted her again the next month, informing her that it planned to talk to Best Interest about her mortgage. A letter from BAC followed a few weeks after that, telling her that BAC had become the servicer of her mortgage.

After another long stretch without hearing from anyone, Blake was informed that she had to start making trial payments of $991.69. She was told that doing so for three months would allow her to refinance her loan at a monthly rate of $991.69. But either BAC or BANA ended up telling her she could not refinance her home at this rate.² And eventually BANA told Blake that it would not consider her for a loan modification. This lead to Either BAC or BANA repeatedly contacting Blake with foreclosure threats.

Blake filed suit shortly after receiving this news, suing BANA, Countrywide, Best Interest, BAC, and a number of fictitious defendants in the Circuit Court of Lee County, Alabama. Her complaint contains a request for injunctive relief and four substantive counts requesting damages. The Court will address each claim in turn.

V. Discussion

A. Blake's request for injunctive relief

Blake's complaint contains a section entitled “Affirmative Defenses to the Delinquency of the Mortgage Loan Account and Possible Foreclosure.” (Doc. # 1–10.) Although Blake does not specifically ask for an injunction, this section claims that the defendants do not have standing to initiate a foreclosure. The defendants have treated this section as a request for injunctive relief and now seek to have the claim dismissed. Because Blake agrees with the defendants that any “claims for injunctive relief related to a potential foreclosure are not ripe,” (Doc. # 27), the issue is now moot and the claim is due to be dismissed.

B. Blake's negligent and wanton mortgage servicing claims

Blake's first substantive count alleges negligent mortgage servicing on the part of BAC. The second count claims BAC serviced her mortgage wantonly. She asserts the bank owed her a fiduciary duty to collect and distribute payments properly and to debit and credit her accountcorrectly. And she contends BAC breached this duty by assessing illegal fees and failing to service the mortgage in a commercially reasonable manner. The defendants' response focuses on whether or not Alabama law recognizes a cause of action for negligent or wanton mortgage servicing. They argue that it does not, or, alternatively, that even if Alabama law recognizes such a claim, Blake's complaint failed to state one.

Alabama does not recognize a tort-like cause of action for the breach of a duty created by contract. Indeed, “a negligent failure to perform a contract ... is but a breach of the contract.” Vines v. Crescent Transit Co., 264 Ala. 114, 85 So.2d 436, 440 (1956); see also Barber v. Business Prods. Ctr., 677 So.2d 223, 228 (Ala.1996) (“a mere failure to perform a contractual obligation is not a tort”); Am. Dist. Tel. Co. of Ala. v. Roberts & Son, 219 Ala. 595, 122 So. 837, 840 (1929) (holding plaintiff cannot maintain tort action where alleged negligence consists of failure to perform a contractual obligation). A plaintiff can only sue in tort when a defendant breaches the duty of reasonable care—the duty one owes to another in his day-to-day affairs—when such a breach causes personal injury or property damage. Vines, 85 So.2d at 440.

Here, Blake's complaint alleges that BAC, as mortgage servicer, undertook a duty to collect payments and to debit and credit her mortgage account properly. She claims that BAC's failure to perform this obligation led to payments being misapplied and fees being charged to her account. So these allegations raise the questions: from where did this duty arise? Was it created by a contract? Or does a reasonable person owe a similar duty to another in his or her day-to-day affairs?

The repayment and servicing obligations at issue here stem from the mortgage and promissory note executed by the parties, not from the duty of reasonable care generally owed to members of the public. ( See Compl. at ¶ 6) (“The action is brought to enforce the contractual remedies allowed in the mortgage document.” (emphasis added).) Blake attempts to overcome this by claiming that she can sue BAC in tort since she only had an agreement with BANA. But this argument falls flat.

BANA's decision to employ BAC to act as an agent to service Blake's mortgage does not mean that BAC exposed itself to tort liability. This is true even though the Court credits Blake's claim that BAC breached the contract's terms while acting as BANA's agent. Under Alabama law, an agent, like BAC, could only incur tort liability while...