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Salazar v. Bank of America, N.A.

United States District Court, M.D. Florida, Tampa Division

May 18, 2018

MOISES SALAZAR, Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant.

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE.

         A decade ago, the Treasury Department introduced the Home Affordable Modification Program, which allegedly requires a participating bank to use “reasonable efforts” to modify the mortgage of a person in default or reasonably likely to default.[1] After an eligible mortgagor applies for a modification, the program requires several “trial payments” before the bank approves the modification.

         In June 2017, Moises Salazar and 118 other plaintiffs sued Bank of America in a single action.[2] No. 8:17-cv-1534-RAL (M.D. Fla. June 27, 2017). The 292-page “shotgun” complaint, which copied swaths from a qui tam complaint in the Eastern District of New York, [3] alleged fraud and the violation of Florida's Deceptive and Unfair Trade Practices Act. In the part of the complaint specific to him, Salazar alleged that in July 2011 a Bank of America employee, “Jorge, ” told Salazar that a modification requires a default. (Doc. 1 at ¶ 209 in No. 17-cv-1534) Bank of America allegedly omitted to mention that a reasonably foreseeable likelihood of default might qualify a mortgagor for a modification. Moving to dismiss the complaint, Bank of America argued misjoinder of the plaintiffs' claims, failure to plead fraud with particularity, failure to state a claim, expiration of the four-year limitation, and the absence of a private right to sue a bank for violating the requirements of the Home Affordable Modification Program.

         Before resolving the motion to dismiss, the presiding judge observed that the complaint, which alleged neither each plaintiff's citizenship nor the amount in controversy between each plaintiff and Bank of America, failed to invoke diversity jurisdiction. (Doc. 15 in No. 17-cv-1534) Ordered to amend the complaint to invoke diversity jurisdiction, Salazar and the other plaintiffs submitted a 403-page complaint. (Doc. 16 in No. 17-cv-1534) For the second time, Bank of America moved to dismiss Salazar's complaint and repeated the arguments from the earlier motion. The presiding judge in that action found misjoinder, severed the plaintiffs' claims, and ordered the plaintiffs to sue separately.

         The plaintiffs heeded the presiding judge's command. Between October 30, 2017, and November 3, 2017, more than a hundred plaintiffs sued Bank of America in the Middle District of Florida in eighty actions and alleged fraud under Florida common law. Excepting names, dates, addresses, and the like, the complaints are identical. The actions are distributed among eight district judges in the Middle District of Florida. In two actions, the presiding judges found the claims barred by the four-year limitation.[4]

         In Salazar's third complaint (but the first complaint in this case), Salazar alleges (Doc. 1) four misrepresentations by Bank of America. First, Bank of America allegedly failed to mention that a reasonably foreseeable danger of default might qualify a mortgagor for a modification; second, Bank of America stated that the mortgagor failed to provide Bank of America with the documents necessary to complete the modification; third, Bank of America orally notified the mortgagor that the bank approved the requested modification; and fourth, Bank of America charged a “fraudulent” inspection fee. For the third time, Bank of America moved (Doc. 9) to dismiss the complaint. Salazar has not - in any motion, pleading, or other paper - moved at any moment in this action for leave to amend the complaint.

         A February 1, 2018 order (Doc. 12) dismisses each fraud claim except the claim that Bank of America omitted to mention that a reasonably foreseeable likelihood of default might qualify a mortgagor for a modification. In this claim, Salazar alleges that Bank of America instructed him on July 28, 2011, to “refrain from making his regular mortgage payments” in order to qualify for a modification. (Doc. 1 at ¶ 37) Bank of America allegedly omitted to mention that a reasonably foreseeable likelihood of default can qualify a mortgagor for a modification. (Doc. 1 at ¶ 37) Confusingly, Salazar alleges elsewhere in the complaint that a modification requires not a reasonably foreseeable likelihood of default but rather an “eminent [sic] default.” (Doc. 1 at ¶ 38) In either event, unaware of his option not to default, Salazar allegedly “refrained from” paying his mortgage and, as a result, “fell into default status.” (Doc. 1 at ¶ 39) As a “direct result” of Bank of America's alleged omission, Salazar allegedly suffered the loss of both his home and the equity in his home. (Doc. 1 at ¶ 39)

         Moving (Doc. 24) for summary judgment, Bank of America observes that Salazar defaulted in June 2008, three years before Bank of America's alleged omission. In an affidavit that accompanies his response, Salazar affirms that he defaulted on the mortgage “due in part to the state of the economy and my own personal financial obligations.” (Doc. 26 at 6) Two paragraphs later, Salazar swears that, when he called Bank of America on July 28, 2011, he “was capable of and intended to start making my mortgage payments.” (Doc. 26 at 6) Salazar affirms that Bank of America advised him not to cure the default and that he suffered a foreclosure after relying on Bank of America's advice. (Doc. 26 at 7) Objecting to Salazar's maintaining two putatively irreconcilable sets of factual assertions (that is, “I was not in default” and “I was in default”), Bank of America replies (Doc. 30) that Salazar cannot in effect amend his complaint by responding to a motion for summary judgment with facts that conflict with the allegations in the complaint.

         Bank of America argues that the record reveals no genuine dispute of material fact about the fraud claim alleged in the complaint.

         As Bank of America correctly observes, the fraud claim in the complaint appears to conflict irreconcilably with the argument in the response to Bank of America's motion for summary judgment. In the complaint, Salazar alleges:

Relying on the false statement and omission, [Salazar] refrained from making [his] regular mortgage payment and fell into default status.

         (Doc. 1 at ¶ 39) In the response to Bank of America's motion for summary judgment, Salazar argues:

The fact that [Salazar] was in default at the time of the phone call is irrelevant because it was [Bank of America's] statements that stopped [Salazar] from getting out of default.

         (Doc. 26 at 3) In other words, in responding to the motion for summary judgment Salazar tacitly concedes that he defaulted before the July 28, 2011 omission and asserts a new theory - that he “intended” to cure the default but that Bank ...


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