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Santos v. Bank of America, N.A.

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

July 24, 2018

PLUTARCO SANTOS and RAMONA SANTOS, Plaintiffs,
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.

         THE PROCEDURAL HISTORY

         In December 2016, Plutarco and Ramona Santos and several dozen other plaintiffs sued Bank of America in the Circuit Court for Hillsborough County, and Bank of America removed the action and invoked diversity jurisdiction. No. 8:17-cv-238-VMC (M.D. Fla. Jan. 1, 2017). 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. The Santoses and the other plaintiffs voluntarily dismissed the action before the presiding judge decided the motion.

         Four months after the dismissal, the Santoses and more than a hundred other plaintiffs sued Bank of America again 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, [2] alleged fraud and the violation of Florida's Deceptive and Unfair Trade Practices Act. In the part of the complaint specific to them, the Santoses alleged that in February 2010 a Bank of America employee, “Jason, ” told the Santoses that a modification requires a default. (Doc. 1 at ¶ 672 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. Bank of America moved to dismiss and repeated the arguments from the previous case.

         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, the Santoses and the other plaintiffs submitted a 403-page complaint. (Doc. 16 in No. 17-cv-1534) For the third time, Bank of America moved to dismiss the Santoses' complaint and repeated the arguments from the earlier motions. 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.[3]

         In the Santoses' fourth complaint (but the first complaint in this case), the Santoses alleged (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 fourth time, Bank of America moved (Doc. 9) to dismiss the complaint. The Santoses have not 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, the Santoses allege that Bank of America instructed them on February 17, 2010, 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) Unaware of their option not to default, the Santoses 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, the Santoses allegedly suffered the loss of both their home and the equity in their home. (Doc. 1 at ¶ 39)

         Moving (Doc. 27) for summary judgment, Bank of America observes that the Santoses defaulted in June 2008, a year and a half before Bank of America's alleged omission. In response to the motion for summary judgment, the plaintiffs tacitly conceded defaulting before the alleged misrepresentation, affirmed that Bank of America advised them not to cure the default, and argued that they suffered a foreclosure after relying on Bank of America's advice. Objecting to the Santoses' maintaining two putatively irreconcilable sets of factual assertions (that is, “I was not in default” and “I was in default”), Bank of America replied (Doc. 35) that the Santoses cannot in effect amend their complaint by responding to a motion for summary judgment with facts that conflict with the allegations in the complaint.

         Identifying the discrepancy between the allegations in the complaint and the argument in the response, a June 8, 2018 order (Doc. 36) permits the plaintiffs a final opportunity to amend the complaint to clarify the facts that substantiate the fraud claim.

         THE OPERATIVE COMPLAINT

         In the fourth amended complaint (Doc. 37), the plaintiffs tacitly concede defaulting before the misrepresentation. For the fifth time, Bank of America moves (Doc. 38) to dismiss the complaint. This order will not repeat or resolve all of the arguments in the motion to dismiss, but several arguments merit discussion.

         First, Bank of America argues persuasively that Rooker-Feldman bars the fraud claim.[4] Responding that Bank of America “gross[ly] misappl[ies]” Rooker-Feldman, the plaintiffs argue that the fraud claim “do[es] not require a determination that the state court erroneously entered the foreclosure judgment.” (Doc. 44 at 4) According to the plaintiffs, the fraud claim amounts not to an indirect attack on the foreclosure judgment but rather a claim that Bank of America's “fraudulent actions resulted in a ...


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