Parker v. Bank of America, NA
| Decision Date | 16 December 2011 |
| Docket Number | Civil Action 11-1838. |
| Parties | Valerie PARKER v. BANK OF AMERICA, NA and BAC Home Loans Servicing, Inc.[1] |
| Court | Massachusetts Superior Court |
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
For the reasons that follow, the Defendants' Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, as more fully set out in the Order below.
This is a dispute between a borrower/mortgagor and the lender and servicing company which made and have serviced (respectively) her mortgage loan. The Complaint is in ten counts, as follows:
According to the Complaint, whose allegations are taken as true for purposes of this Motion, the plaintiff in 2007 granted first and second mortgages on her home at 172 Middle Street, Apt 107, Lowell to Bank of America (the " Bank" ). She paid the loans on time for the first twenty-four months. As the economy worsened, however, she anticipated difficulty in making payments, and so called the defendants for advice. The defendants told her that because the loan was not in default they could not help her, and that she would have to cease payments if she wanted their assistance.
At some point, the defendants began participating in the federal Home Affordable Modification Program (" HAMP" ). The plaintiff applied for modification assistance via HAMP, but the process proved frustrating: the defendants repeatedly lost her paperwork; she had to submit and re-submit documents; and she spent hours at a time on hold, waiting to speak with a human being. She did, however, receive the defendants' verbal assurance that she was " pre-qualified" for the HAMP program and that confirmatory paperwork would be forthcoming. This was reiterated in a letter in July 2010, which indicated that she was qualified and promised further paperwork to complete the process. It never happened.
In sum the defendants " have serially delayed and obstructed the Plaintiff's efforts at modification to pad their revenues and protect their financial interest to the detriment of Plaintiff in violation of the federal mandates included with Defendants' acceptance of Troubled Asset Relief Program (" TARP" )" funding. The Complaint posits several forms of financial advantage that she infers the defendants have sought to realize by delaying and denying modification.[2] By the time of the Complaint, the defendants had instituted a " non-judicial foreclosure action" against the plaintiff. This presumably refers to an action brought to comply with the Servicemembers' Relief Act. See 50 U.S.C.App. §§ 501 et seq., implemented in Massachusetts by the Acts of 1943, c. 57, reprinted after G.L. c. 244, § 14.
With her opposition to the defendants' Motion to Dismiss, the plaintiff submitted an affidavit. This provides considerably more detail than the Complaint concerning her dealings with the Bank from October 2009, when she first contacted it about a loan modification, through the latter part of 2010. The affidavit is further discussed below, insofar as it is relevant to this Motion.
1. Standard of Review.
When evaluating the legal sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the Court accepts as true all factual allegations in the complaint, and draws all reasonable inferences in favor of the plaintiff. Berish v. Bornstein, 437 Mass. 252, 267, 770 N.E.2d 961 (2002). The Court's review is ordinarily limited to the four corners of the Complaint, see Reliance Ins. Co. v. Boston, 71 Mass.App.Ct. 550, 554-55, 884 N.E.2d 524 (2008), supplemented where appropriate by resort to documents attached to or referenced in the Complaint, and matters of public record. Schaer v. Brandeis University, 432 Mass. 474, 477, 735 N.E.2d 373 (2000); Harhen v. Brown, 431 Mass. 838, 840, 730 N.E.2d 859 (2000).[3]
The Complaint in this case displays a persistent and unfortunate disregard for the pleading standard articulated in Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-36, 888 N.E.2d 879 (2008). In Iannacchino, the SJC shadowed the evolution of federal law [4] and abandoned the old " no set of facts" rule of Nader v. Citron [5] to require more rigorous and informative pleading. Although the allegations of the Complaint are still taken as true (as under the old Nader rule), they are now to be examined for " heft."
What is required at the pleading stage are factual " allegations plausibly suggesting (not merely consistent with)" an entitlement to relief, in order to " reflect[ ] the threshold requirement of [Rule] 8(a)(2) that the ‘ plain statement’ possess enough heft to ‘ sho[w] that the pleader is entitled to relief.’ "
Iannacchino, 451 Mass. at 636, 888 N.E.2d 879, quoting Twombly, 550 U.S. at 555-57.
Every Count in the Complaint in this case, if confined within its four corners, would fail the Iannacchino test. As noted above, however, the plaintiff filed an affidavit with her opposition to the motion to dismiss. This brings into play the penultimate sentence of Rule 12(b):
If, on any motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
The motion has been argued and taken under advisement without either side or (regrettably) the Court explicitly invoking this aspect of the Rule, or discussing the appropriate procedure for giving the parties an appropriate opportunity to submit summary judgment materials. Such concerns are less pressing, however, when (as here) it is the plaintiff/opponent who has expanded upon the materials normally reviewable under Rule 12. This is because the assertions in her affidavit are essentially irrebuttable for purposes of the motion, whether considered under Rule 12 or Rule 56. Compare Berish, supra, with Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203, 581 N.E.2d 475 (1991) (). I have therefore, in the discussion below of each Count, considered the allegations of the plaintiff's affidavit as if they had been (as they should have been) included within her Complaint.
I turn, then, to the ten Counts of the Complaint. Because the disposition of Count 2 (Negligence) depends in part on Count 4 (Breach of Contract), I have rearranged the order somewhat in this discussion from that in the Complaint.
To the factual rendition summarized above, Count One adds only conclusory allegations that the defendants have made false statements of material fact on which then plaintiff has relied to her detriment. This falls short of the pleading requirements for any sort of claim under Iannacchino, let alone the particularity requirement imposed by Mass. R. Civ. P. 9(b) for a fraud claim.
In her affidavit, however, the plaintiff has chronicled her communications with the defendants in substantially greater detail, including exact or approximate dates and a summary of what was said in each. Paragraph 4 is as follows:
In October of 2009, I contacted Bank of America due to economic hardship and divorce to arrange a reduced payment plan and a modification of the loan. I was told to stop paying the mortgage in order to be qualified for a program that could help me. I wanted to find a way to avoid being assessed late penalties and wanted to preserve my excellent credit.
Thereafter, the affidavit avers (again, with dates and other specifics) that she sought advice from a community agency, then submitted materials to the Bank in support of a loan modification. She became unable to continue paying the loan in December 2009, but was assured of help by the Bank, only to be told later that no program to help her existed.
At some point in the first half of 2010, the Bank implemented a loan modification program under HAMP. Although it told the plaintiff on July 3, 2010 that she qualified for relief, the Bank never sent her the forms and repeatedly lost her paperwork, demanding more paperwork, which she provided, and which the Bank again misplaced. It made false and/or broken promises of relief, and gave conflicting messages concerning whether she should make loan payments in the meantime and in what amount. Finally, the Complaint alleges in paragraph 5, the Bank commenced foreclosure proceedings.[6]
These averments are sufficient to make out a claim for fraud. See e.g., McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 709, 563 N.E.2d 188 (1990) (...
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