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Paredes v. Bank of America, N.A.

United States District Court, M.D. Florida, Fort Myers Division

February 27, 2018

BANK OF AMERICA, N.A., Defendant.

          OPINION AND ORDER [1]


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 review.


         This 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).

         On 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).

         Then, 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).

         On June 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).

         Finally, 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).

         Plaintiffs' 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.[2] (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).


         Under 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 omitted).

         Fraud 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, ...

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