United States District Court, M.D. Florida, Tampa Division
GABINO C. PERALTA and ARELY M. RAMIREZ, Plaintiffs,
BANK OF AMERICA, N.A., Defendant.
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
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. After an eligible mortgagor applies for a
modification, the program requires several “trial
payments” before the bank approves the modification.
2017, Gabino Peralta and Arely Ramirez and 117 other
plaintiffs sued Bank of America in a single
action. 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,  alleged fraud and the violation
of Florida's Deceptive and Unfair Trade Practices Act. In
the part of the complaint specific to them, Peralta and
Ramirez alleged that in January 2011 a Bank of America
employee, “Angela, ” told them that a
modification requires a default. (Doc. 1 at ¶ 521 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.
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, the
plaintiffs submitted a 403-page complaint. (Doc. 16 in No.
17-cv-1534) For the second time, Bank of America moved to
dismiss the 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.
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.
Peralta and Ramirez's third complaint (but the first
complaint in this case), Peralta and Ramirez allege (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
mortgagors failed to provide Bank of America with the
documents necessary to complete the modification; third, Bank
of America orally notified the mortgagors 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. Peralta and Ramirez have not - in any motion,
pleading, or other paper - moved at any moment in this action
for leave to amend the complaint.
February 1, 2018 order (Doc. 17) 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, Peralta and
Ramirez allege that Bank of America instructed them on
January 5, 2011, to “refrain from making their 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, Peralta and Ramirez allege
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 their option not to default, Peralta
and Ramirez allegedly “refrained from” paying
their mortgage and, as a result, “fell into default
status.” (Doc. 1 at ¶ 39) As a “direct
result” of Bank of America's alleged omission,
Peralta and Ramirez allegedly suffered the loss of both their
home and the equity in their home. (Doc. 1 at ¶ 39)
(Doc. 30) for summary judgment, Bank of America observes that
the plaintiffs defaulted in October 2007, three years before
Bank of America's alleged omission. In an affidavit that
accompanies their response, Arely Ramirez affirms that she
defaulted on the mortgage “due in part to the state of
the economy and my own personal financial obligations.”
(Doc. 33 at 6) Two paragraphs later, Ramirez swears that,
when she called Bank of America on January 5, 2011, she
“was capable of and intended to start making my
mortgage payments.” (Doc. 33 at 6) Ramirez affirms that
Bank of America advised her not to cure the default and that
she suffered a foreclosure after relying on Bank of
America's advice. (Doc. 33 at 7) Bank of America objects
to the plaintiffs' maintaining two putatively
irreconcilable sets of factual assertions (that is, “I
was not in default” and “I was in default”)
and argues that the plaintiffs cannot in effect amend their
complaint by responding to a motion for summary judgment with
facts that conflict with the allegations in the complaint.
America argues that the record reveals no genuine dispute of
material fact about the fraud claim alleged in the complaint.
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, the plaintiffs allege:
Relying on the false statement and omission, [Peralta and
Ramirez] refrained from making their regular mortgage payment
and fell into default status.
at ¶ 39) In the response to Bank of America's motion
for summary judgment, the plaintiffs argue:
The fact that [Peralta and Ramirez] were in default at the
time of the phone call is irrelevant because it was [Bank of
America's] statements that stopped [Peralta and Ramirez]
from getting out of default.
33 at 3) In other words, in responding to the motion for
summary judgment the plaintiffs tacitly concede that they
defaulted before the January 5, 2011 omission and assert a
new theory - that they “intended” to cure the
default but that Bank ...