United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon consideration of Defendant
Bank of America, N.A.'s Motion to Dismiss Plaintiffs'
Amended Complaint (Doc. # 29), filed on March 28, 2018.
Plaintiffs Abelardo Alonso and Ariela Sollet filed their
response in opposition on April 12, 2018. (Doc. # 30). The
Amended Complaint, (Doc. # 22), represents Plaintiffs'
fourth attempt at pleading in this case. For the reasons
below, the Court grants Bank of America's Motion to
Dismiss in part and denies in part. Finding that leave to
amend at this juncture would be futile, Plaintiffs may not
file a second amended complaint.
27, 2017, over 70 plaintiffs sued Bank of America in one
action in the Middle District of Florida. Torres, et al.
v. Bank of America, N.A., No. 8:17-cv-1534, (M. D. Fla.
June 27, 2017), Doc. # 1. Plaintiffs Abelardo Alonso and
Ariela Sollet were two of the many plaintiffs in the original
lawsuit. Plaintiffs alleged Bank of America (BOA) committed
common law fraud in its administration of the Home Affordable
Modification Program. HAMP was implemented by the Federal
Government in March of 2009, to help homeowners facing
foreclosure. (Doc. # 22 at ¶ 9). BOA entered into a
Servicer Participation Agreement with the Federal Government
in which BOA was required to use reasonable efforts to
effectuate any modification of a mortgage loan under HAMP.
(Id. at ¶ 10). The Federal Government, in
exchange for BOA's participation in HAMP, agreed to
compensate BOA for part of the loss attributable to each
modification. (Id. at ¶ 11). Plaintiffs'
claims were all based on their attempts to secure a loan
modification with BOA under HAMP.
original lawsuit, BOA filed a Motion to Dismiss under
Fed.R.Civ.P. 12(b)(6), (Torres Doc. # 12), and
Plaintiffs amended their complaint. (Torres Doc. #
16). Following BOA's second Motion to Dismiss,
(Torres Doc. # 17), the presiding judge severed the
claims and required Plaintiffs to sue separately.
(Torres Doc. # 19). Plaintiffs Abelardo Alonso and
Ariela Sollet filed a separate complaint on October 30, 2017.
(Doc. # 1). Three months later, on March 7, 2018, Plaintiffs
filed an Amended Complaint. (Doc. # 22). Thus, the operative
complaint in this matter is Plaintiffs' fourth attempt to
properly plead their cause of action.
Amended Complaint alleges BOA committed four fraudulent acts:
(1) falsely telling Plaintiffs that “they can't be
current on their mortgage to qualify for a HAMP loan
modification” and failing to tell Plaintiffs that they
could qualify for HAMP if default was reasonably foreseeable
(“HAMP Eligibility Claim”); (2) falsely telling
Plaintiffs the requested supporting financial documents
Plaintiffs had submitted to BOA were missing
(“Supporting Documents Claim”); (3) falsely
telling Plaintiffs that they were approved for a HAMP
modification and needed to start making trial payments
(“HAMP Approval Claim”); and (4) fraudulently
omitting how inspection fees charged to Plaintiffs'
account would be applied (“Inspection Fee
Claim”). (Doc. # 22 at ¶¶ 38, 41, 48, 55).
Motion to Dismiss, BOA argues that Plaintiffs' fraud
claims are barred by the statute of limitations and banking
statute of frauds. (Doc. # 29 at 6, 11). BOA also contends
that Plaintiffs' Amended Complaint violates Rule 9(b) by
failing to allege circumstances constituting fraud with
sufficient particularity. (Id. at 14). These
arguments are addressed in turn.
Rule 12(b)(6) motion to dismiss, this Court accepts as true
all the allegations in the Complaint and construes them in
the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir.
2004). Further, the Court favors the plaintiff with all
reasonable inferences from the allegations in the Complaint.
Stephens v. Dep't of Health & Human
Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)
(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). In addition, courts are not
“bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986). Furthermore, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
“[t]he scope of review must be limited to the four
corners of the complaint.” St. George v. Pinellas
Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). “There
is an exception, however, to this general rule. In ruling
upon a motion to dismiss, the district court may consider an
extrinsic document if it is (1) central to the
plaintiff's claim, and (2) its authenticity is not
challenged.” SFM Holdings, Ltd. v. Banc of Am.
Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010).