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