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. # 33), filed on March 28, 2018.
Plaintiffs Gustavo Morales and Marelys Hernandez filed their
response in opposition on April 12, 2018. (Doc. # 34). The
Amended Complaint, (Doc. # 24), 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 Gustavo Morales and
Marelys Hernandez 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. # 24 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 Gustavo Morales and
Marelys Hernandez filed a separate complaint on November 3,
2017. (Doc. # 1). Three months later, on March 7, 2018,
Plaintiffs filed an Amended Complaint. (Doc. # 24). 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 have to be in
default 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. # 24 at ¶¶ 38, 41, 48,
Motion to Dismiss, BOA argues that Plaintiffs' fraud
claims are barred by the statute of limitations and banking
statute of frauds. (Doc. # 33 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).