Stroman v. Bank of Am. Corp., Civil Action No. 1:10–CV–4080–AT.

• Citation: 852 F.Supp.2d 1366
• Decision Date: 30 March 2012
• Docket Number: Civil Action No. 1:10–CV–4080–AT.
• Parties: Natala S. STROMAN, Plaintiff, v. BANK OF AMERICA CORPORATION; Bank Of America, N.A.; BAC Home Loans Servicing, LP (a subsidiary of Bank of America, N.A. and formerly known as Countrywide Home Loans Servicing, L.P.); Experian Information Solutions, Inc.; and ABC corporations 1–3, Defendants.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

852 F.Supp.2d 1366

Natala S. STROMAN, Plaintiff,

v.BANK OF AMERICA CORPORATION; Bank Of America, N.A.; BAC Home Loans Servicing, LP (a subsidiary of Bank of America, N.A. and formerly known as Countrywide Home Loans Servicing, L.P.); Experian Information Solutions, Inc.; and ABC corporations 1–3, Defendants.

Civil Action No. 1:10–CV–4080–AT.

United States District Court,

N.D. Georgia,

Atlanta Division.

March 30, 2012.

Auden L. Grumet, The Law Office Of Auden L. Grumet, LLC, Atlanta, GA, for Plaintiff.

Andrew G. Phillips, McGuire Woods LLP, Atlanta, GA, for Bank of America.

James Williams, Jr., Jones Day, Atlanta, GA, for Experian.

J. Anthony Love, Betsey L. Tate, King & Spalding LLP, Atlanta, GA, for Equifax.

Alex Barfield, Hawkins & Parnell, Atlanta, GA, for TransUnion.

ORDER

AMY TOTENBERG, District Judge.

This matter is before the Court on Defendants Bank of America Corporation, Bank of America, N.A. (“BOA”), and BAC Home Loans Servicing, LP's (“BAC”) (collectively, the “Bank Defendants” or “BOA Defendants”) ¹ motion to dismiss [Doc. 24]. Plaintiff Natala Stroman has alleged claims against Defendants under common law and a number of consumer law statutes for conduct arising out of the servicing of her home mortgage loan. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss.

I. STANDARD FOR MOTION TO DISMISS

This Court may dismiss a pleading for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). A pleading fails to state a claim if it does not contain allegations that support recovery under any recognizable legal theory. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1216 (3d ed. 2002); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. ²See Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.1993). The pleader need not have provided “detailed factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

II. BACKGROUND³

On or about January 31, 2008, Plaintiff Natala Stroman obtained a residential mortgage loan from Quicken Loans to finance the purchase of her home in Hampton, Georgia. (Compl. ¶ 15.) About two months after the loan closing, the servicing of her loan was transferred to Countrywide Home Loans Servicing, L.P. ( Id.) The servicing was transferred a second time, to Defendant BAC, on May 1, 2009. ( Id.) Plaintiff's loan is owned by Fannie Mae. ( Id. at ¶ 19.)

Due to the economic downturn, Plaintiff began to experience financial hardship. ( Id. at ¶ 18.) Despite this hardship, Plaintiff alleges that she has never failed to make a timely payment under her loan contract. ( Id. at ¶ 17.) In the summer of 2009, with the help of the Neighborhood Assistance Corporation of America (“NACA”), Plaintiff applied for a loan modification under the Home Affordable Modification Program (“HAMP”). ( Id. at ¶ 21.) On November 19, 2009, BAC sent Plaintiff an email (through her NACA representative) stating:

We have reviewed the case and will be able to offer a loan modification. A trial period of 4 months will be required, at the new PITI payment of $1,234.00 for 12/01/09 through 03/01/10. If the trial period is successful, New PI: $905. New PITI: $1,234.00. New UPB: $232,554.16. Deferred principal: $26,997.27. Interest bearing principal: $205,556.88. First payment due with modification documents. Interest rate 3.0% for remaining term of the loan.

( Id. at ¶ 23.) Plaintiff responded in writing the same day stating that she accepted this proposal.⁴ ( Id. at ¶ 24.)

Plaintiff followed up with Bank of America on or about March 5, 2010, regarding the status of her loan modification. ( Id. at ¶ 26.) On March 12, 2010, BAC's Loss Mitigation Department sent Plaintiff an email explaining:

We have reviewed the case and are offering a modification of the loan. New PI: $781.07, New PITI: $1202.63, New UPB: $232,017.49, Interest bearing principal: $176,732.49. The first payment is due with signed modification documents. 1st payment effective date will be 05/01/2010. An interest rate of 3.00% will be effective for the remaining term of 334 months.

( Id. at ¶ 27.) On or about March 24, 2010, Plaintiff received a package dated March 12, 2010, with the enclosed loan modification agreement, which BAC requested Plaintiff execute and return by March 29, 2010. ( Id. at ¶ 28.) Plaintiff returned the signed and notarized agreement, along with a money order for the first modified payment, to BAC on March 25, 2010, by Fed Ex. ( Id. at ¶ 31.)

Plaintiff began to experience problems in her dealings with the BOA Defendants after the loan modification was finalized. Specifically, Plaintiff states that BOA has continued to send her billing statements with erroneous late fees and past-due balances and has also sent her “dunning collection letters,” some of which threatened negative credit reporting, acceleration of the loan, and foreclosure. ( Id. at ¶¶ 37–38.) BOA placed Plaintiff's November 2009–February 2010 payments pursuant to the modification into a holding account. ( Id. at ¶¶ 25, 44.) Radian Guarantee, Inc., Plaintiff's mortgage insurer, sent her two letters reflecting that BOA had sent Radian derogatory information about the status of Plaintiff's mortgage loan. ( Id. at ¶ 43.) In June 2010 BOA began a barrage of collection calls regarding Plaintiff's June payment, although she had already sent it more than a week earlier. ( Id. at ¶ 62.)

Although Plaintiff has made all payments under the modification in a timely manner, and BOA has acknowledged this fact, BOA has been transmitting negative information to the credit reporting agencies (“CRA's”). ( Id. at ¶¶ 45, 48, 49.) Plaintiff disputed the negative information with the CRA's on three separate occasions. ( Id. at ¶ 50.) Plaintiff's counsel sent demand letters to the CRA's and the BOA Defendants in which he explained the errors and demanded that they be corrected. ( Id.) BOA acknowledged the credit reporting errors as early as March, 2010, and have continually promised to correct the reporting, but Plaintiffs credit reports still reflect the erroneous information. ( Id. at ¶ 52.)

As a result of this negative credit reporting, Plaintiff's credit score has gone down, BOA suspended Plaintiff's overdraft line of credit, BOA reduced Plaintiff's Visa credit card limit from $17,000 to $5,400, and Discover Card reduced Plaintiffs credit card limit. ( Id. at ¶¶ 54, 55.) The BOA mortgage is the only negative reporting on Plaintiff's credit reports. ( Id. at ¶ 57.) The damage to her credit and the harassing calls and letters regarding alleged missed payments have caused Plaintiff to suffer stress, embarrassment, humiliation, anxiety, and worry. ( Id. at ¶ 56.)

III. DISCUSSION

Plaintiff asserts the following claims based on these facts: (1) violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq.; (2) violations of the HAMP program; (3) violations of the Fair Credit Billing Act (“FCBA”), 15 U.S.C. § 1666 et seq.; (4) violations of the Fair Credit Reporting Act (“FCRA”) and Fair and Accurate Credit Transactions Act (“FACTA”), 15 U.S.C. § 1681 et seq.; (5) violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.; (6) violations of the Georgia Fair Lending Act (“GFLA”), O.C.G.A. § 7–6A–1 et seq.; (7) breach of contract; (8) breach of the implied covenant of good faith and fair dealing; (9) negligence; (10) defamation-slander-libel; (11) unjust enrichment; (12) conversion; (13) theft by conversion; (14) theft by deception; (15) violations of the Georgia Fair Business Practices Act (“FBPA”) and Deceptive Trade Practices Act (“DTPA”); (16) fraud; (17) emotional distress; (18) civil RICO; (19) general liability; (20) agency; (21) miscellaneous relief; and (22) injunctive and declaratory relief.

The Bank Defendants have moved to dismiss all of Plaintiffs claims against them for failure to state a claim upon which relief may be granted. The Court considers each claim in turn.

A. RESPA (Count 1)

Plaintiff asserts that the BOA Defendants have demonstrated a “pattern and practice of repeatedly and intentionally/knowingly” violating RESPA by failing to timely and properly acknowledge and respond to Plaintiff's Qualified Written Requests (“QWR's”), failing to take corrective action identified in the QWR's, failing to provide Plaintiff the information requested in the QWR's, failing to cease its collection efforts after receiving the QWR's, and providing erroneous information to the credit bureaus related to alleged overdue payments disputed in her QWR's. (Compl. ¶¶ 65–72.)

Defendants argue that Plaintiff has failed to plead the contents of her alleged RESPA QWR's or attach them to the complaint in order to allow the Court and Defendants to determine (a) if they requested information that was covered by RESPA, and (b) if Defendants timely responded. (Br. Supp. Mot. Dismiss at 17–19.) Plaintiff responds that she has referenced “more than two qualifying QWR letters” in her complaint, and points to her June 10, 2010, and July 29, 2010, letters (referenced in paragraphs 94–95) and Exhibit F to the Complaint, an undated letter with certified return receipt cards showing that it was mailed on April 1, 2010. (Resp. at 23.)

The relevant section of RESPA provides:

(B)...