Brown v. Bank of Am., Nat'l Ass'n

• Decision Date: 22 December 2014
• Docket Number: Civil Action No. 13–13256–PBS.
• Court: U.S. District Court — District of Massachusetts
• Parties: Fitzroy BROWN, Individually and as Trustee of the Owena O. Dunn Family Trust, Dated August 29, 2002, Plaintiff, v. BANK OF AMERICA, NATIONAL, ASSOCIATION, Bank of America National Association by Merger to BAC Home Loans Servicing, LP, BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP, Harmon Law Offices, P.C., Defendants.

67 F.Supp.3d 508

Fitzroy BROWN, Individually and as Trustee of the Owena O. Dunn Family Trust, Dated August 29, 2002, Plaintiff

v.BANK OF AMERICA, NATIONAL, ASSOCIATION, Bank of America National Association by Merger to BAC Home Loans Servicing, LP, BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP, Harmon Law Offices, P.C., Defendants.

Civil Action No. 13–13256–PBS.

United States District Court, D. Massachusetts.

Signed Dec. 22, 2014.

Stephen C. Reilly, Ryan M. Cunningham, William G. Cosmas, Jr., Sally & Fitch LLP, Boston, MA, Andrea V. Lasker, Robert M. Mendillo, Harmon Law Offices, P.C., Newton, MA, for Defendants.

ORDER

SARIS, District Judge.

I. INTRODUCTION

Plaintiff Fitzroy Brown, proceeding pro se, alleges that he was forced to sell his home because Defendants Bank of America, N.A. (“BANA”) and BAC Home Loans Servicing, LP (“BAC”),¹ engaged in a pattern of delay and misrepresentations that prevented him from modifying his loan and avoiding foreclosure. BANA/BAC now seeks to dismiss the complaint. After a hearing, the Court ALLOWS in part and DENIES in part BANA/BAC's Motion to Dismiss (Docket No. 33).

II. FACTUAL BACKGROUND

The facts alleged in the Amended Complaint are taken as true for purposes of this motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 667, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

This case stems from the nation's recent foreclosure crisis. In 2007, Plaintiff Fitzroy Brown obtained a loan from BANA, which was secured by a mortgage on his home at 41 Armandine Street in Boston, MA.² By September 2009, Brown had fallen behind on his loan payments and faced foreclosure. As a result, BANA mailed Brown a letter offering him “a new program to help you keep your home.” As part of this program, BANA asked Brown to send in his financial documents so that he could be evaluated for loss mitigation assistance. Seizing this opportunity to avoid foreclosure, Brown followed the instructions and sent in his financial documents. But BANA never followed up with him and ignored his repeated inquiries about the progress of his application. Eventually, BANA told Brown that it never received his documents, which was false.

Later that year, BAC took over as servicer for Brown's loan and invited him to apply for the Home Affordable Modification Program (“HAMP”), a federal program that allows qualified homeowners to reduce their monthly mortgage payments.³ Brown called BAC in November 2009 to ask if he could participate. A BAC representative told him that he qualified for a HAMP modification but needed to call again in February 2010 to formally apply.

Given BAC's instructions to wait until February, Brown was surprised to receive a notice of intention to foreclose from BAC in January 2010. To figure out what was happening, Brown called BAC. This time, BAC told Brown that he was approved for a HAMP three-month trial period plan (“TPP”). The representative promised that Brown's loan would be permanently modified once he faxed over his financial documents and made payments of $1349 for the next three months.

Brown again complied, sending his financial information and making monthly TPP payments over the next four months. But BAC did not hold up its end of the bargain and grant a loan modification. Instead, BAC mailed numerous HAMP application packages for Brown to complete. And when Brown called BAC to ask about the delay, the company told him that he had failed to send in the necessary financial documents. None of this made sense, given that Brown had already faxed over his financial information and was making TPP payments. To add to the confusion, BAC later informed Brown over the phone that there was a pending date for a foreclosure sale, and so BAC would not accept any more payments from him. All of this was inconsistent with what the BAC representative had told him in February-that he would receive a loan modification and halt the foreclosure process if he sent in his financial information and made monthly TPP payments, which is precisely what Brown did.

Around the same time, Brown also began to receive notices from Harmon Law Offices, P.C. (Harmon), which said that it had been hired by BAC to foreclose on his mortgage. On October 22, 2010, Harmon mailed a notice of intent to foreclose and acceleration of the note. This notice claimed that Brown owed a total outstanding balance of $325,861.42. Feeling that foreclosure was inevitable at this point-especially given BAC's lack of good faith in helping him get a loan modification-Brown sold his home on January 18, 2011.

Because the sale was not enough to make up Brown's debt, BAC continued to contact and harass him in 2011. As a result, Brown hired an attorney in June 2011 to receive all communications from BAC. Nonetheless, he continued to receive phone calls and letters from BAC regarding foreclosure. After BAC and BANA merged into BANA/BAC, the company again threatened to foreclose on Brown in November 2011.

Curiously, BANA/BAC never followed through on its threats. Instead, the bank discharged Brown's mortgage in September 2012. Brown also received a check for $2000 in April 2013 pursuant to an agreement between BANA/BAC and federal banking regulators involving the bank's deficient mortgage servicing and foreclosure processes. Additionally, BANA/BAC wrongly purchased and charged Brown for hazard insurance for several years, even though he had already purchased insurance on his own. To refund him for these erroneous charges, BANA/BAC sent Brown a check for $2129 in September 2012.

III. PROCEDURAL HISTORY

In July 2013, Brown sent BANA/BAC a demand letter under Mass. Gen. Laws ch. 93A (“Chapter 93A”), and BANA/BAC responded. Brown then filed a complaint in Massachusetts state court, which BANA/BAC removed to this Court. (Docket No. 4). In February 2014, Brown filed an amended complaint (Docket No. 29), which raised 9 claims for relief: violations of Mass. Gen. Laws ch. 93A (Counts 1–3); breach of oral (Count 4) and written contract (Count 5); violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, (Count 6); unjust enrichment/restitution (Count 7); negligent misrepresentation (Count 8); and declaratory relief (Count 9). Brown voluntarily dismissed Harmon. (Docket No. 48). BANA/BAC's motion to dismiss is now ripe for resolution. (Docket No. 33).

IV. DISCUSSION

To survive a Rule 12(b)(6) motion to dismiss, the factual allegations in a complaint must “possess enough heft” to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “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.”Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). “Plausible, of course, means something more than merely possible, and gauging a pleaded situation's plausibility is a context-specific job that compels [the Court] to draw on [its] judicial experience and common sense.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.2012) (quotation marks omitted). Dismissal is appropriate if the complaint fails to set forth factual allegations respecting each material element necessary to sustain recovery under a legal theory. Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008).

In considering the adequacy of the pleadings, the Court accepts all factual allegations in the complaint and draws all reasonable inferences in favor of the plaintiff. Schatz, 669 F.3d at 55. The Court “must consider the complaint, documents annexed to it, and other materials fairly incorporated within it,” which “sometimes includes documents referred to in the complaint but not annexed to it.” Rodi v. S. New Eng. Sch. Of Law, 389 F.3d 5, 12 (1st Cir.2004). Also, the Court construes pro se complaints, like Brown's, liberally. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir.2008) (“[W]e are solicitous of the obstacles that pro se litigants face, and while such litigants are not exempt from procedural rules, we hold pro se pleadings to less demanding standards than those drafted by lawyers and endeavor, within reasonable limits, to guard against the loss of pro se claims due to technical defects.”).

A. Chapter 93A Claims (Counts 1–3)

Brown first raises claims under the Massachusetts Consumer Protection Act, otherwise known as Chapter 93A (Counts 1–3). Count 1 alleges that BANA/BAC charged him for hazard insurance for several years when he had already purchased insurance on his own. Counts 2–3 allege that BANA/BAC engaged in a pattern of delay and misrepresentation in response to his attempts at obtaining a loan modification, which eventually forced Brown to sell his home as BANA/BAC continued to pursue foreclosure. BANA/BAC responds that Brown's claims are deficient because they do not sufficiently allege: (1) an unfair or deceptive practice committed by BANA/BAC; or (2) economic injury. The Court agrees that Count 1 fails to sufficiently allege an economic injury. But Counts 2 and 3 pass Rule 12(b)(6) inspection.

To allege a violation of Chapter 93A, a plaintiff must show that the defendant engaged in trade or business and committed an unfair or deceptive act, causing economic injury to the plaintiff. Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 69 (1st Cir.2009) (citing Mass Gen. Laws. c. 93A §§ 2, 11 ). Conduct is “deceptive” when “it has the capacity to mislead consumers, acting reasonably under the circumstances, to act differently from the way they otherwise would have acted.” Aspinall v. Philip Morris Cos., 442 Mass. 381, 813 N.E.2d 476, 488 (2004). Meanwhile, courts consider several factors to determine whether conduct is “unfair”: (1) whether the practice is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is...