Trionfo v. Bank of Am., N.A., Civil No. JFM-15-925

• Decision Date: 02 September 2015
• Docket Number: Civil No. JFM-15-925
• Parties: FRANK TRIONFO, et al., v. BANK OF AMERICA, N.A.
• Court: U.S. District Court — District of Maryland

FRANK TRIONFO, et al.,
v.
BANK OF AMERICA, N.A.

Civil No. JFM-15-925

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

September 2, 2015

MEMORANDUM

Plaintiffs Frank and Suzanne Trionfo filed this action against Bank of America, the servicer of their mortgage loan, alleging violations of rules promulgated by the Consumer Financial Protection Bureau under the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 et seq. (2012), and the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law §§ 13-101 et seq. (West 2015). The complaint is styled as a class action. Now pending is Bank of America's motion to dismiss. (ECF No. 9).

No oral argument is necessary. See Local Rule 105.6. For the reasons set forth below, Bank of America's motion is granted.

BACKGROUND

The plaintiffs own residential real property in Fallston, Maryland. (Complaint, ECF No. 1 at ¶ 72). In September 2015, the plaintiffs received a loan in the amount of $329,000 secured by a deed of trust on the property from Intervale Mortgage Corporation. Id. at ¶ 73. BAC Home Loans Servicing LP was the original servicer of the loan. Id. On July 1, 2011 Bank of America became the servicer of the loan. Id. at ¶ 74.

Mr. Trionfo suffered a back injury and, as a result, was laid off from his landscaping job in 2010. Id. at ¶ 76. Mrs. Trionfo took a job in order to assist with the family finances, id. at ¶

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76, but the plaintiffs fell behind on their mortgage payments and other debts from the time Mr. Trionfo lost his job until June 2013 when he regained full-time employment. Id. at ¶¶ 76-77.

This case involves a series of communications between Bank of America and the plaintiffs. The first communication identified by the plaintiffs was on March 15, 2014 when Starla King, a member of Bank of America's "Home Loan Team" sent plaintiffs a letter indicating that they were behind on their payments and "encouraging them to apply for loss mitigation programs offered by BofA to prevent them from going into foreclosure." Id. at ¶ 78. The letter also contained a "brochure explaining the different loss mitigation options offered by BofA" and a loss mitigation application. Id. The plaintiffs allege that on March 24, 2014 they sent a completed loss mitigation application to BofA, id. at ¶ 79, explaining "how they had fallen behind on their loan payments because Mr. Trionfo had lost his job" but stating that they could now make payments because they were both employed. Id. at ¶ 81.

The plaintiffs allege that Bank of America responded to their request with a letter dated March 26, 2014. Id. at ¶ 83. The letter acknowledged receipt of their loss mitigation application. Id. at ¶ 83. The letter provided that Bank of America would send another letter "in the next few days that either confirms we have all the documents we need from you, or identifies the documents you still need to prove, along with the timeframe in which you should provide them." Id. at ¶ 83.

On April 2, 2014, according to plaintiffs, Linda Clayton, a Bank of America customer relationship manager ("CRM"), sent the plaintiffs a letter "stating she would work with the plaintiffs to pursue every available option to assist the plaintiffs with their home loans." Id. at ¶ 86. On April 4, 2014, however, the plaintiffs received a "notice of intent to foreclose" that again encouraged them to apply for various loss mitigation options—the same programs identified in

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the March 15, 2014 letter. The plaintiffs allege that also on April 23, 2014 and April 25, 2014, Bank of America sent them letters identical to the March 26, 2015 letter, indicating that the Bank had received their loss mitigation application and would send them a letter within the next few days indicating if their application was complete or incomplete. Id. at ¶¶ 88, 89.

Again, according to plaintiffs, on September 22, 2014 they received a letter from Tracey Newsome, identifying herself as their new CRM and indicating that she would be assisting them with various loss mitigation options. Id. at ¶ 91. On November 13, 2014, Bank of America sent the plaintiffs a letter in regards to their loss mitigation application. Id. at ¶ 92. The letter acknowledged their pending loss mitigation application, but stated that it was incomplete, and as a result, was no long under evaluation. Id. On November 25, 2014, the plaintiffs allege they sent a letter to Bank of America, in which they "explain[][ed] that BofA had never requested additional documentation from them or told them what documents it was purportedly missing" and "asked BofA to continue evaluating their application." Id. at ¶ 93.

On December 31, 2014, Bank of America sent the plaintiffs a letter indicating that their loan had been referred to the Foreclosure Review Committee. Id. at ¶ 94. Plaintiffs allege that the letter provided that Bank of America had "not received past due payments," despite the fact that, according to plaintiffs, they were making payments. Id. On January 2, 2015, Bank of America sent another letter warning the plaintiffs that "steps had been taken to begin the foreclosure process." Id. at ¶ 95. The letter also stated that the plaintiffs "have not previously shown interest in any of the alternatives," i.e. the loss mitigation programs, available to them. Id.

Bank of America sent the plaintiffs another letter on January 5, 2015. This letter allegedly stated that Bank of America was "unable to provide them with a list of documents required to be reviewed for a loan modification due to investor nonparticipation." Id. at ¶ 96.

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The letter allegedly stated that: "[t]he investor, or owner of your loan does not allow us to modify the terms of your loan documents." Id.

The plaintiffs allege that Bank of America's conduct throughout this period violated the RESPA regulations. First, the plaintiffs allege that Bank of America violated 12 C.F.R. § 1024.41(b), by not sending, within five days of receipt of the plaintiffs' loss mitigation application, a notification indicating whether or not the application was complete and if, incomplete, what was missing. Id. at ¶ 82. Second, the plaintiffs allege that Bank of America violated 12 C.F.R. § 1024.41(c) by also failing to, within 30 days of receiving a loss mitigation application, evaluating the plaintiffs for loss mitigation options or determining, which, if any, loss mitigation options were available to the plaintiffs. Id. at ¶ 84. Last, the plaintiffs argue that the Bank of America failed to "state the specific reasons why the plaintiffs were denied any trial or permanent loan modification" in violation of 12 C.F.R. 1024.41 (d). Id. at ¶ 85. The plaintiffs also argue that the conduct violated various provisions of the MCPA. Id. at ¶¶ 131-44.

On February 11, 2015, Bank of America instituted a foreclosure action against the plaintiffs. The plaintiffs allege that because Bank of America violated the notice requirements of RESPA, the foreclosure is invalid. Id. at ¶ 103. The plaintiffs also allege that Bank of America has since stopped accepting their monthly payments, id. at ¶ 104, has charged them $1,469.85 in late fees, $3,798.87 in foreclosure expenses and attorneys' fees, and has "ruined their credit score." Id. at ¶ 105. Additionally, the plaintiffs state in their complaint that Bank of America's conduct "substantially delayed the loss mitigation process," forced the plaintiffs to spend "considerable time and effort pursuing the loss mitigation process," and caused the plaintiffs to "incur administrative costs such as postage, travel expenses, photocopying, scanning, and facsimile expenses" that they otherwise would not have incurred. Id. at ¶¶106, 107, 108.

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The plaintiffs bring this suit as a class action on behalf of similarly-situated individuals. They define a "nationwide class" as all persons in the country that submitted a loss mitigation application to Bank of America after January 10, 2014 and a "Maryland class" as all persons in Maryland that submitted a loss mitigation application to Bank of America after March 31, 2012. Id. at ¶ 110.

STANDARD

"[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations omitted). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true" and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009).

To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations...