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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. 11). Plaintiff Simon Parades filed his Response in Opposition. (Doc. 12). The matter is ripe for review.


         This case concerns Bank of America's allegedly fraudulent loan modification practices while administering a government program designed to alleviate financial hardship after the Great Recession. In May 2003, Parades executed a mortgage and note for a home at 4827 Marine Dr., Cape Coral, FL 33904. (Doc. 1 at ¶ 34). Bank of America eventually became the loan servicer on the account. (Doc. 1 at ¶ 35). In 2009, Parades 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, Parades returned it with supporting financial documents. (Doc. 1 at ¶ 40).

         On December 29, 2009, Parades contacted Bank of America again and a representative named “Maria” advised him to stop making mortgage payments or “they could not be eligible for a HAMP modification.” (Doc. 1 at ¶ 37). Parades alleges this statement was false because default was not required for HAMP eligibility. (Doc. 1 at ¶ 37). However, Parades relied on this statement, did not make his regular mortgage payments, and fell into default. (Doc. 1 at ¶ 39).

         Then, on February 11, 2010, Parades spoke to a Bank of America representative who stated that Parades' HAMP application was incomplete and that he needed to submit more financial documentation. (Doc. 1 at ¶ 41). Parades received the same or similar directives in later phone calls. (Doc. 1 at ¶ 41). Parades alleges these statements were false and this was an intentional act by Bank of America to frustrate his application process. (Doc. 1 at ¶¶ 41, 43). But Parades relied on these statements and resubmitted his application and supporting information. (Doc. 1 at ¶ 44).

         On March 24, 2010, a Bank of America representative named “Roger” verbally informed Parades that his HAMP application was approved for a trial loan modification. (Doc. 1 at ¶ 46). The representative then requested Parades make “trial payments” of more than $1, 200.00. (Doc. 1 at ¶ 46). Parades alleges this statement was false because the HAMP application had not been approved. (Doc. 1 at ¶ 46). But Parades made three trial payments of more than $1, 200.00. (Doc. 1 at ¶ 49). He claims he was damaged because Bank of America “placed those payments in an unapplied account and refused to credit his account, ” because he ultimately lost his home, and because his credit rating suffered. (Doc. 1 at 50).

         Finally, Parades alleges Bank of America charged him for twenty-nine property inspections between 2008 and 2012, even though he was “living in the home”. (Doc. 1 at ¶ 52). He claims 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 his home and charging his account inspections fees.” (Doc. 1 at ¶ 53).

         Parades' home was foreclosed upon in May 2010, and a judgment was entered. (Doc. 1 at ¶ 49). He then vacated the home in 2012. (Doc. 1 at ¶ 49). Based on these facts, Parades filed the Complaint on October 31, 2017, alleging a single fraud count. (Doc. 1). Now, Bank of America moves to Dismiss. (Doc. 12).


         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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