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 Plaintiff's
Amended Complaint (Doc. # 32), filed on March 28, 2018.
Plaintiff Hosmert Vergara filed his response in opposition on
April 12, 2018. (Doc. # 33). The Amended Complaint, (Doc. #
23), represents Plaintiff's 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,
Plaintiff 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. Plaintiff Hosmert Vergara was one
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. #
23 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). Plaintiff Hosmert Vergara filed
a separate complaint on November 3, 2017. (Doc. # 1). Three
months later, on March 7, 2018, Plaintiff filed an Amended
Complaint. (Doc. # 23). Thus, the operative complaint in this
matter is Plaintiff's fourth attempt to properly plead
his cause of action.
Amended Complaint alleges BOA committed four fraudulent acts:
(1) falsely telling Plaintiff that he “can't be
current” on his mortgage to qualify for a HAMP loan
modification and failing to tell Plaintiff that he could
qualify for HAMP if default was reasonably foreseeable
(“HAMP Eligibility Claim”); (2) falsely telling
Plaintiff the requested supporting financial documents
Plaintiff had submitted to BOA were stale (“Supporting
Documents Claim”); (3) falsely telling Plaintiff that
he was approved for a HAMP modification and needed to start
making trial payments (“HAMP Approval Claim”);
and (4) fraudulently omitting how inspection fees charged to
Plaintiff's account would be applied (“Inspection
Fee Claim”). (Doc. # 23 at ¶¶ 38, 41, 48,
Motion to Dismiss, BOA argues that Plaintiff's fraud
claims are barred by the statute of limitations and banking
statute of frauds. (Doc. # 32 at 6, 11). BOA also contends
that Plaintiff's 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).