Hurd v. BAC Home Loans Servicing, LP

• Decision Date: 29 March 2012
• Docket Number: Civil Action No. 3:11–CV–1752–M.
• Citation: 880 F.Supp.2d 747
• Parties: Emma HURD, Plaintiff, v. BAC HOME LOANS SERVICING, LP, f/k/a Countrywide Home Loans Servicing, L.P. for the Benefit of the J.P. Morgan Mortgage Acquisition Trust 2006–CW1, Defendant.
• Court: U.S. District Court — Northern District of Texas

880 F.Supp.2d 747

Emma HURD, Plaintiff,

v.BAC HOME LOANS SERVICING, LP, f/k/a Countrywide Home Loans Servicing, L.P. for the Benefit of the J.P. Morgan Mortgage Acquisition Trust 2006–CW1, Defendant.

Civil Action No. 3:11–CV–1752–M.

United States District Court,

N.D. Texas,

Dallas Division.

March 29, 2012.

Joseph E. Ackels, L. Edward Ackels, III, Ackels & Ackels LLP, Dallas, TX, for Plaintiff.

Jason D. Clark, C. Charles Townsend, Jelena Kovacevic, Akerman Senterfitt LLP, Dallas, TX, for Defendant.

ORDER ACCEPTING FINDINGS, CONCLUSIONS, & RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

BARBARA M.G. LYNN, District Judge.

The Court has under consideration the Findings, Conclusions, & Recommendation of the United States Magistrate Judge on Bank of America, N.A., Successor by Merger to BAC Home Loan Servicing, LP's Motion to Dismiss Plaintiff's Petition, filed August 19, 2012 (doc. 7). No objections were filed. The District Court reviewed the proposed Findings, Conclusions, & Recommendation for plain error. Finding none, the Court accepts the Findings, Conclusions, & Recommendation of the United States Magistrate Judge.

Bank of America, N.A., Successor by Merger to BAC Home Loan Servicing, LP's Motion to Dismiss Plaintiff's Petition, filed August 19, 2012, is GRANTED in part and DENIED in part. Accordingly, Plaintiffs claims for the breach of the promise to modify, her promissory estoppel claim, her claim under the Deceptive Trade Practices Act, her wrongful foreclosure claim, her claim to remove cloud on title, her claim for trespass to try title, and her claim for violations of the Real Estate Settlement Procedures Act are DISMISSED WITH PREJUDICE.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ, United States Magistrate Judge.

Pursuant to the standing order of reference dated December 13, 2011, this case has been referred for pretrial management, including the determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive motions. Before the Court is Bank of America, N.A., Successor by Merger to BAC Home Loan Servicing, LP's Motion to Dismiss Plaintiff's Petition, filed August 19, 2012 (doc. 7). Based on the relevant filings and applicable law, the motion should be GRANTED in part and DENIED in part.

I. BACKGROUND

This is an action involving foreclosure of real property located at 4608 Indian Creek Drive, Balch Springs, Texas 75180 (the property). Plaintiff Emma Hurd (Plaintiff) initially filed suit against BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing for the Benefit of the J.P. Morgan Mortgage Acquisition Trust 2006–CW1 in the 160th Judicial District Court for Dallas County, Texas, on June 29, 2011. ( See doc. 1.) On July 22, 2011, Bank of America, N.A., successor by merger to BAC Home Loan Servicing, LP (Defendant),¹ removed this case on the basis of diversity jurisdiction. ( Id.) After removal, on August 5, 2011, Plaintiff filed an amended complaint asserting claims for breach of contract, negligent misrepresentations, fraud/fraud in the inducement, violations of the Deceptive Trade Practices Act (DTPA), negligence, promissory estoppel, unjust enrichment/quantum meruit, trespass to personalty, action to remove cloud on title, wrongful foreclosure, trespass to try title, and violations of the Real Estate Settlement Procedures Act (the RESPA). She seeks declaratory judgment and rescission of the foreclosure sale, attorney's fees, and actual, compensatory, consequential, and exemplary damages. ( See doc. 6 at 12–26.)

Plaintiff claims that on January 17 and 18, 2006, she executed an adjustable rate promissory note and a deed of trust on the property. ( Id. at 2.) The original holder of the note and deed of trust was Countrywide Home Loans, Inc. (Countrywide). ( Id.) In November 2008, Countrywide offered Plaintiff a loan modification with a new monthly payment of $1,051.74 and allegedly advised her that getting behind on her loan payments would increase her chances of being approved for a modification during the modification process. ( Id. at 3.) Plaintiff accepted, signed, and returned the modification and paid the required $1000.00 fee. ( Id.)

Plaintiff claims that in or about May 2010, she received an invoice from Bank of America (BOA) notifying her that she was in default. ( Id.) She claims that it was unclear whether the note had been transferred to BOA, but BOA began servicing the note. ( Id.) On or about July 22, 2010, Plaintiff received notice from BAC, claiming that it was going to service the loan on behalf of the note-holder. ( Id. at 4.) The notice was unclear as to identity of the holder, however. ( Id.) The notice stated that she owed $3,272.69, payable by August 21, 2010, promised her that other payment plans were available, and notified her that the note would be accelerated on August 21, 2010. ( Id.)

On or about July 23, 2010, Plaintiff faxed a modification application to BAC and BOA. ( Id.) When she contacted them by phone, they told her that the more she got behind, the more eligible she would be for what they called an “Obama” modification. ( Id.) On or about July 29, 2010, Plaintiff received a letter from BOA notifying her that BAC serviced her home loan, and that she was not in default but was delinquent. ( Id.) The amount she had to pay would be $1,196.01, and if payment was made after August 16, 2010, the amount would be $1,229.10. ( Id.)

On November 17, 2010, Plaintiff received a letter on BOA's letterhead that was signed by BAC. ( Id. at 5.) The letter stated, among other things, that BOA had reviewed her modification request and that her loan was not eligible for a Home Affordable Modification. ( Id.) On November 22, 2010, Plaintiff received another letter from BOA that was signed by BAC. ( Id.) The letter stated that her eligibility review could not be completed until she provided certain documents. ( Id.) The same day, BOA sent her another letter, this time advising her that the first letter “indicated the wrong documents” and that a revised letter with the correct information was attached. ( Id.) No such letter was attached. ( Id.)

Plaintiff called BOA at numbers provided in the letters to obtain information necessary to determine her eligibility. ( Id. at 5–6.) She was told that she would be given a loan modification—the only question was which one of three she would receive. ( Id. at 6.) In December 2010, Plaintiff called BOA to check on her loan modification. ( Id.) A male individual informed her over the phone that she had been denied the “Obama modification” but was eligible and/or approved for an “inhouse modification” that was better than the “Obama modification.” ( Id.)

On December 15, 2010, BAC attempted for the second time to give Plaintiff notice to accelerate her note. ( Id.) The notice was substantially similar to the letter of July 2010, except that it claimed Plaintiff owed $7,588.41, to be paid by January 14, 2011. ( Id.) The letter allegedly failed to provide a basis or support for this arbitrary number and to comply with the deed of trust in that it did not inform Plaintiff of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense to acceleration and sale. ( Id.)

Plaintiff claims that she was hoping by 2011 that BOA or BAC would clear up the confusion they had created regarding her eligibility or approval for a modification versus the attempted acceleration. ( Id.) On January 24, 2011, Plaintiff received yet another letter on BOA's letterhead that was signed by BAC, stating that her loan was not eligible for a modification. ( Id.) The next day, around 7:00 P.M., she called BOA to inquire about the conflicting letters and was put in contact with “Brittany” in the “Home Retention Department.” ( Id. at 7.) Brittany advised her that she was eligible for some “in-house” modifications, and after making some requested changes to her account, again advised her that she pre-qualified for one of three modifications. ( Id.) She told Plaintiff that a package would be sent in the mail within 30 days confirming the new modification that would decrease her monthly payment and work out a payment plan. ( Id.) Plaintiff believes this conversation was recorded and is in BOA's or BAC's possession. ( Id.)

On January 26, 2011, Plaintiff received another letter from BAC thanking her for sending the financial documents to determine her eligibility. ( Id.) This letter stated that she would hear back from BAC within 30 days as to which modification she would receive. ( Id.) Despite the promised modification, she never heard back from BAC. ( Id.) On February 7, 2011, Plaintiff called BOA for an update on her modification. ( Id.) A BOA representative told her that a package should be sent out regarding her new modification within 15 to 30 days and advised her to keep checking each week. ( Id.) In the meantime, Plaintiff was not making payments to assure the modification in accordance with the alleged prior representations. ( Id. at 7–8.)

On February 24, 2011, Plaintiff received a letter from an entity called Reconstruct Company, N.A. (Reconstruct). ( Id. at 8.) The letter claimed that Plaintiff's loan had been accelerated and that she owed $119,670.89. ( Id.) The letter stated that “the name of the Creditor to whom the debt is owed” was “BAC Home Loan Servicing, L.P.” ( Id.) Plaintiff alleges that she had never been apprised that her note was assigned to BAC. ( Id.) The letter stated that Plaintiff had 30 days to dispute the validity of the debt, and that upon request, Reconstruct would provide Plaintiff with the name and address of the original creditor. ( Id.) Prior to this February 24, 2011 letter, Plaintiff had not received a notice of intent to accelerate from anyone, including Reconstruct, or notice that the debt could be cured by February 24, 2011. ( Id.) These notices were allegedly required by...