Tatten v. Bank of Am. Corp.
| Decision Date | 17 December 2012 |
| Docket Number | Civil Action No. 12-cv-00459-KMT |
| Parties | JAMES P. TATTEN, individually, Plaintiff, v. BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BAC HOME LOANS SERVICING, LP, and BRIAN T. MOYNIHAN, in his capacity as President and Chief Executive Officer, Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER
This matter is before the court on "Defendants' Renewed Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(6)" (Doc. No. 27 [Mot.], filed June 20, 2012). Plaintiff did not file a response to the motion. This matter is ripe for ruling.
In his Complaint, Plaintiff states in November 2008, he suffered a head injury and was hospitalized for intensive inpatient rehabilitation. (Doc. No. 3, ¶¶ 2-5.) Plaintiff states in January 2009, he notified Defendant Bank of America ("BOA") that he was being treated for traumatic brain injury and that he would need assistance of his family in "identifying and handling his financial matters, including his accounts with Bank of America." (Id., ¶ 6.)Plaintiff alleges after January 2009, Defendant BOA "engaged in wrongful and unlawful conduct directed at Plaintiff Tatten's and his account(s), loan modification(s) and real property . . . ." (Id., ¶ 7.) Plaintiff alleges Defendant BOA made "statements to mislead, misrepresent and deceive the terms, conditions, costs and effect of loan modification" and coerced Plaintiff into signing a mortgage loan modification. (Id., ¶ 9.)
At some point, Plaintiff stopped making his monthly loan payments (id., ¶ 36), and on June 15, 2009, he received a letter from BOA's counsel advising foreclosure proceedings had begun. (Id., ¶ 37.) Plaintiff alleges on July 15, 2009, he received assurances from BOA that his account was "on hold" and his home was not in foreclosure. (Id., ¶ 38.) On August 29, 2009, Plaintiff received another loan modification agreement from BOA, which Plaintiff was instructed to review, sign, and deliver to BOA on or before September 28, 2009. (Id., ¶ 42.) Plaintiff alleges on September 17, 2009, he received a "wrongful and incorrect notice of cancelation [sic]" from BOA, and on September 22, 2009, BOA's counsel wrote to Plaintiff to advise him that BOA had instructed them to proceed with foreclosure. (Id., ¶¶ 43-44.)
Plaintiff states that he wrote letters to BOA's counsel, and on September 28, 2009, "under duress, amended, signed, notarized and delivered" the loan modification to BOA. (Id., ¶¶ 45-47.) On October 8, 2009, the Public Trustee for Denver County set the auction of Plaintiff's property for October 15, 2009. (Id., ¶ 48.)
Plaintiff alleges on October 27, he received another letter from BOA "contain[ing] statements of material facts that are misleading, false and fraudulent." (Id., ¶ 50.) On October 28, 2011, Plaintiff filed Consumer Complaint with the United States Department of Treasury,Comptroller of the Currency, Administrator of National Banks. (Id., ¶ 51.) On January 18, 2012, Plaintiff received notice from the Office of the Comptroller of the Currency that his request for review of BOA's foreclosure action was received. (Id., ¶ 52.) Plaintiff states a Rule 120 foreclosure hearing was held on January 20, 2012, BOA's attorney "made statements to the Court that mislead and misrepresented documents, terms, conditions and business decisions material to the case . . . thereby convincing the Court to authorize [BOA] to proceed with a wrongful and unlawful foreclosure." (Id., ¶ 53.)
Plaintiff asserts four claims for relief against all defendants, including a claim for fraudulent misrepresentation, intentional infliction of emotional distress, breach of contract, breach of fiduciary duty, and violation of the Real Estate Settlement Procedures Act ("RESPA"). (See id. at 14-22.)
Defendants move to dismiss Plaintiff's claims under Fed. R. Civ. P. 12(b)(6) on the bases that (1) Plaintiff has failed to plead his fraud claim with specificity; (2) Plaintiff has not alleged any outrageous conduct; (3) Plaintiff has failed to plead any of the elements of breach of contract; (4) Plaintiff cannot establish the existence of a fiduciary duty owed by the defendants; and (5) Plaintiff's RESPA claim is barred by the statute of limitations. (See Mot.)
Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see alsoHaines v. Kerner, 404 U.S. 519, 520 (1972) (). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ().
Fed. R. Civ. P. 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6) (2007). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). "To survive a motion to dismiss, a complaintmust contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 1950.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). Iqbal, 129 S. Ct. at 1940. Moreover, Id. at 1949 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short ofthe line between possibility and plausibility of 'entitlement to relief.'" Iqbal,129 S. Ct. at 1949 (citation omitted).
Defendants argue that the tort claims against Defendant Moynihan fail because Plaintiff has failed to allege personal participation by Defendant Moynihan. As a general rule, a corporate officer or shareholder, by virtue of that status alone is not liable for the acts or debts of the corporation. Newport Steel Corp. v. Thompson, 757 F. Supp. 1152, 1156 (D. Colo. 1990) ( ) (citing United States v. Van Diviner, 822 F.2d 960, 963 (10th Cir. 1987)). Corporate agents are liable for torts of the corporation if they approved of, sanctioned, directed, actively participated in, or cooperated in such conduct. Hoang v. Arbess, 80 P.3d 863, 868 (Colo. App. 2003).
Here, Plaintiff states that Defendant Moynihan "is being sued in his official capacity as the Chief Executive Officer of Bank of America Corporation and employed by Bank of America Corporation with responsibility for the acts, conduct and business practices of Bank of America Corporation." (Doc. No. 3 at 6, ¶ 20.) Plaintiff alleges only that Defendant Moynihan committed the alleged acts "by and through the employees, representatives and agents of the Office of the Chief Executive Office and President." (Id. at 13, ¶ 54.) However, Plaintiff fails to allege that Defendant Moynihan "approved of, sanctioned, directed, actively...
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