United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on Defendant Bank of
America's Motion to Dismiss (Doc. 14).
Plaintiffs Simon Parades and Rita Parades filed a Response in
Opposition. (Doc. 15). The matter is ripe for
case concerns Bank of America's allegedly fraudulent loan
modification practices when administering a government
program designed to alleviate financial hardship after the
Great Recession. In March 2004, Plaintiffs executed a
mortgage and note for a home at 923 SE 18th St., Cape Coral,
FL 33990. (Doc. 1 at ¶ 34). Bank of America
eventually became the loan servicer on the account. (Doc.
1 at ¶ 35). In 2009, Plaintiffs experienced
financial hardship and contacted Bank of America requesting a
loan modification under the Home Affordable Modification
Program (“HAMP”). (Doc. 1 at ¶ 36).
After Bank of America supplied an application, Plaintiffs
returned it with supporting financial documents. (Doc. 1
at ¶ 40).
January 21, 2010, Plaintiffs contacted Bank of America again
and a representative named “Maria” advised them
to stop making mortgage payments or “they could not be
eligible for a HAMP modification.” (Doc. 1 at
¶ 37). They allege this statement was false because
default was not required for HAMP eligibility. (Doc. 1 at
¶ 37). However, Plaintiffs relied on this
statement, did not make their regular mortgage payments, and
fell into default. (Doc. 1 at ¶ 39).
on March 3, 2010, Plaintiffs spoke to a Bank of America
representative named “Ramiro” and “others,
” who stated that Plaintiffs' HAMP application was
incomplete and that they needed to “resubmit another
application.” (Doc. 1 at ¶ 41).
Plaintiffs received the same or similar directives in later
phone calls. (Doc. 1 at ¶ 41). They allege
these statements were false and this was an intentional act
by Bank of America to frustrate their application process.
(Doc. 1 at ¶¶ 41, 43). But Plaintiffs
relied on these statements and resubmitted their modification
application. (Doc. 1 at ¶ 43).
21, 2010, a Bank of America representative named
“Maria” verbally informed Plaintiffs that their
HAMP application was approved for a trial loan modification.
(Doc. 1 at ¶ 46). She then requested Plaintiffs
make “trial payments” of more than $1, 300.00.
(Doc. 1 at ¶ 46). Plaintiffs allege this
statement was false because the HAMP application had not been
approved. (Doc. 1 at ¶ 46). But Plaintiffs made
three trial payments of more than $1, 300.00. (Doc. 1 at
¶ 49). They claim they were damaged because Bank of
America “placed those payments in an unapplied account
and refused to credit the account, ” because they
ultimately lost their home, and because their credit rating
suffered. (Doc. 1 at 50).
Plaintiffs allege Bank of America charged them for
thirty-eight property inspections between 2008 and 2012, even
though they “were living in the home”. (Doc.
1 at ¶ 52). They claim that Bank of America applied
trial payments submitted for the HAMP modification to pay for
inspection fees, and that it “omitted the fact that the
bank was conducting unnecessary and improper inspections on
their home and charging their account inspections
fees.” (Doc. 1 at ¶ 53).
home was foreclosed upon in September 2010, and a judgment
was entered. (Doc. 1 at ¶ 49). Plaintiffs
vacated the home sometime between 2010 and
2012. (Doc. 1 at ¶ 49). Based on
these facts, Plaintiffs filed this Complaint on October 31,
2017, alleging a single fraud count. (Doc. 1). Now,
Bank of America moves to Dismiss. (Doc. 14).
Federal Rule of Civil Procedure 12(b)(6), a court
may dismiss a pleading for failure to state a claim upon
which relief can be granted. The propriety of such a
dismissal is guided by the Twombly-Iqbal
plausibility standard, which requires a plaintiff to allege
sufficient facts “to raise a reasonable expectation
that discovery will reveal evidence” to support a
claim. Twombly, 550 U.S. at 556; see also
Randall v. Scott, 610 F.3d 701, 708 n. 2 (11th Cir.
2010). The Court must accept all factual allegations in a
plaintiff's complaint as true and take them in the light
most favorable to the plaintiff. Pielage v. McConnell, 516
F.3d 1282, 1284 (11th Cir. 2008). This acceptance is limited
to well-pleaded factual allegations. La Grasta v. First
Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.
2004). A “the-defendant-unlawfully harmed me
accusation” is insufficient. Iqbal, 556 U.S.
at 677. “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual
enhancement.” Id. (internal modifications
allegations are subject to heightened pleading standards
under Federal Rule of Civil Procedure 9(b), which
requires a party to “state with particularity the
circumstances constituting fraud.” Generally, this
occurs where the pleading alleges
(1) precisely what statements were made in what documents or
oral representations or what omissions were made, and
(2) the time and place of each such statement and the person
responsible for making (or, in the case of omissions, ...