Kiper v. BAC Home Loans Servicing, LP

• Decision Date: 02 August 2012
• Docket Number: Civil Action Nos. H–11–3008,H–11–3363.
• Citation: 884 F.Supp.2d 561
• Parties: William KIPER, Plaintiff, v. BAC HOME LOANS SERVICING, LP aka Bank of America, N.A., and Federal National Mortgage Assoc. aka Fannie Mae, Defendants. William Kiper, Plaintiff, v. Bac Home Loans Servicing, LP Aka Bank of America, N.A., and Federal National Mortgage Assoc. aka Fannie Mae, Defendants.
• Court: U.S. District Court — Southern District of Texas

884 F.Supp.2d 561

William KIPER, Plaintiff,

v.BAC HOME LOANS SERVICING, LP aka Bank of America, N.A., and Federal National Mortgage Assoc. aka Fannie Mae, Defendants.

William Kiper, Plaintiff,

v.Bac Home Loans Servicing, LP Aka Bank of America, N.A., and Federal National Mortgage Assoc. aka Fannie Mae, Defendants.

Civil Action Nos. H–11–3008, H–11–3363.

United States District Court,

S.D. Texas,

Houston Division.

Aug. 2, 2012.

William Kiper, The Woodlands, TX, pro se.

Raymond A. Chenault, McGlinchey Stafford Houston, TX, for Defendants.

OPINION AND ORDER

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, seeking equitable, declaratory and injunctive relief to prevent Defendants Bank of America, N.A.¹ (“BAC”) and Federal National Mortgage Association (“Fannie Mae”)from enforcing the terms of a promissory note and deed of trust and to enjoin foreclosure on pro se Plaintiff William Kiper (“Kiper”) and his wife's (“Emma Kiper's”) residential property and their eviction, are the following motions: (1) Defendants' motion for judgment on the pleadings (instrument # 9); (2) Kiper's motion for summary judgment (# 13); and (3) Defendants' unanswered motion to strike Plaintiff's Second Amended Complaint (# 25).

Two separate lawsuits filed in state court by Kiper against the same Defendants were removed by Defendants, and then consolidated here. They both reflect Kiper's efforts to prevent foreclosure on and eviction of Kiper and his wife from their residential property at 8755 Skyline Lane, Conroe, Texas and to convey title of that property from Fannie Mae back to Kiper. Bank of America services the Deed of Trust that secures that property and the Federal National Mortgage Association is the lender and holder of the Note.

Defendants' Motion to Strike (# 25)

Because the threshold issue here is determining the controlling pleading in each of the two cases, the Court addresses the last motion first.

Defendants insist that Kiper's Second Amended Complaint (# 24), filed after consolidation of the two suits, was not only filed without seeking Defendants' consent or leave of Court as required by Rule 15(a)(2), but it is essentially the same as his two prior complaints, adding no new parties or substantive claims, and as such, amendment is futile because the Second Amended Complaint cannot withstand Defendants' pending Rule 12(c) motion to dismiss. United States Magistrate Judge Frances Stacy dismissed Plaintiff's [First] Amended Complaint (# 12), also filed after the consolidation, because Kiper failed to respond to Defendants' motion to strike it (# 14) and because he failed to obtain consent from Defendants or leave from the Court to file it. # 20. This Court strikes the Second Amended Complaint for the same two reasons.

Thus the governing pleading in each case is that filed in state court before these cases were removed, copies attached to the Notice of Removal. # 1–1 in each suit.

Allegations in Plaintiff's Petitions

In H–11–3008 (# 1–1)

Plaintiff alleges that he purchased a property at 8755 Skyline Lane, Conroe, Texas 77302, with a mortgage from Countrywide Home Loans, Inc. on October 27, 2005. On February 14, 2008 his wife, Emma Kiper, was severely injured in a hit-and-run automobile accident and his insurance company refused to pay over $30,000 in medical bills. Plaintiff ultimately settled with the insurer in 2010.

Meanwhile Plaintiff contacted BAC a number of times after September 2009 to request a loan modification. At first he was told that he did not have enough income, then that he would have to wait at least three months to qualify to reapply. Finally he was granted a loan modification on July 8, 2010. Kiper found errors in the contract that the BAC submitted to him and continued to complain to BAC. BAC subsequently claimed that it had lost Plaintiff's documents and asked for 60 more pages. When Plaintiff called BAC on April 4, 2011, the day before a foreclosure auction on his property was scheduled, he was told that his application had been resubmitted along with a request for postponement of the auction. Nevertheless, his property was sold at auction on April 5, 2011 to Federal Mortgage Registration, Inc. Plaintiff filed an appeal of the foreclosure and continued to contact Defendants every week. On May 16, 2011 BAC told Kiper that Kiper's request that the foreclosure be rescinded had been granted and that BAC's underwriters had approved a trial loan modification. On May 17, 2011 Plaintiff called BAC again and was told that the person he spoke to the day before did not exist. Kiper continued to call every few days through May and June. On June 7, 2011 Emma Kiper was summoned to appear at an eviction hearing on June 23, 2011, at which time the Justice of the Peace gave Plaintiff thirty days to vacate the property. On June 21, 2011 Fannie Mae requested and received correspondence documenting the allegedly misleading statements and documents that Plaintiff had received from BAC, but Fannie Mae refused to rescind the foreclosure or delay the eviction.

Plaintiff states he has paid off the medical bills and that he and his wife are working full time and now have an annual income of $96,000.

Kiper charges BAC with deceptive business practices and strings together references to the State of Texas Penal Code, Title 7, Offenses against Property, Chapter 32, Fraud, subchapter A. General Provisions, Section 34.42, Deceptive Business Practices, (12), making a materially false or misleading statement, (A) in an advertisement for the purchase or sale of property or service, or (B) otherwise in connection with the purchase or sale of property or service. He seeks an injunction stopping the eviction process, an order that Fannie Mae convey title for the property to Kiper, and an order that BAC must act in good faith in submitting to Kiper a legitimate loan modification agreement.

Attached to his Petition are (1) a chart (“Time Line”) (Ex. A), apparently drawn up by Kiper, showing his alleged contacts with Defendants and dates thereof; Ex. B, Phone log, apparently created made by Kiper, of calls to BAC; (3) Ex. C, “Loan Modification Agreement,” which is actually a letter addressed to Emma Kiper summarizing a proposed loan modification agreement which would not be effective until completed, signed, and notarized; (4) an affidavit by Kiper, dated 7–18–11, detailing the couple's income, debts, and monthly expenses; and (5) an appraisal of the property by the Montgomery County Central Appraisal District.

In H–11–3363 (# 1–1)

The allegations are in large part the same as or similar to those in the other suit. Kiper does add that, after reporting errors in the proposed loan modification contract submitted by BAC in July 2010, Kiper called BAC every three days from July 10, 2010 to December 20, 2010. He claims that BAC told him on July 10, 2010 that the loan modification department could not correct the documents because only the escrow department could determine the correct amount. When he called the escrow department, he was told that it did not have access to a loan modification agreement until it was finalized and that Plaintiff should call the loan modification department. When he called there on July 12, 2010, BAC said the loan modification department would send an email message to the escrow department, but when he checked with the latter on July 19, 2010, he was told that no email message had been received. He asserts that BAC “used this system of bait and trap to defraud Plaintiff.” He continued to call every three days from August through October, repeatedly asking how much he should pay for his mortgage, and each time BAC said he could pay any amount. Finally on October 12, 2010, the errors were resolved, but he was told that the offer sent out on July 7, 2010 had expired and that he would have to reapply. Kiper reapplied that day and continued to call every week through January 10, 2011. Kiper asked for documentation of correspondence and was told that BAC would not send any documentation until an agreement had been finalized, “thus perpetuating Defendant BAC Home Loan's fraud on Plaintiff.”

On January 10, 2011 BAC informed Plaintiff that foreclosure proceedings had been started. On January 24, 2011 BAC told him that it had “lost” Plaintiff's documents and asked Plaintiff to fax twenty-four pages. On March 25, 2011 BAC asked Plaintiff for another sixty pages of documents.

Each time Kiper called he was asked to repeat all the facts from start to finish, even though BAC said Plaintiff's records were on the “screen.” Each time Kiper asked for a written copy of a decision or an agreement, he was told that BAC could not send any written documents until a final decision had been made. “This scheme of not providing documentation allowed Defendant ... to defraud Plaintiff by changing the terms of the loan process each time Plaintiff called.”

Kiper identifies the person who told him on May 16, 2011 that his request that the foreclosure be rescinded had been granted and that a trial loan modification has been approved was Alta Smith. The next day when he called, he was told by “Barbara” that there was no person named Alta Smith working at BAC and no record of a request for a rescindment of the foreclosure nor of an active loan modification request. On May 18, 2011 he was told that there was an active loan modification under review, but that no decision had been made.

In addition to the relief requested in the other suit, Kiper sought $146,310 in economic damages from BAC and $50,000 from Fannie Mae.

Standard of Review

The district court is to construe liberally the briefs of pro se litigants and apply less stringent standards to them than to parties represented by counsel. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (reciting the long-established rule that documents filed pro se are to be liberally construed and “however inartfully pleaded, must be held...