United States District Court, M.D. Florida, Tampa Division
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.
October 2016, Carlos Perez 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. 8:16-cv-3384-SCB (M.D.
Fla. Dec. 12, 2016). 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.
Perez and the other plaintiffs voluntarily dismissed the
action before the presiding judge decided the motion.
months after the dismissal, Perez 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,  alleged fraud and the violation
of Florida's Deceptive and Unfair Trade Practices Act. In
the part of the complaint specific to him, Perez alleged that
in June 2010 a Bank of America employee, “Maria Smith,
” told Perez that a modification requires a default.
(Doc. 1 at ¶ 995 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.
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,
Perez 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 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.
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.
Perez's fourth complaint (but the first complaint in this
case), Perez 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. 14) to dismiss the complaint.
Perez has not 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, Perez alleges
that Bank of America instructed him on June 9, 2010, 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)
Unaware of his option not to default, Perez 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, Perez allegedly suffered the
loss of both his home and the equity in his home. (Doc. 1 at
(Doc. 34) for summary judgment, Bank of America observed that
Perez defaulted in September 2009, nearly a year before Bank
of America's alleged omission. In response to the motion
for summary judgment, Perez tacitly conceded that he
defaulted before the alleged misrepresentation, affirmed that
Bank of America advised him not to cure the default, and
argued that he suffered a foreclosure after relying on Bank
of America's advice. Objecting to Perez's 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. 39) that
Perez cannot in effect amend the complaint by responding to a
motion for summary judgment with facts that conflict with the
allegations in the complaint.
the discrepancy between the allegations in the complaint and
the argument in the response, a June 8, 2018 order (Doc. 40)
permits Perez a final opportunity to amend the complaint to
clarify the facts that substantiate the fraud claim.
fourth amended complaint (Doc. 41), Perez tacitly concedes
defaulting before the misrepresentation. For the fifth time,
Bank of America moves (Doc. 42) to dismiss the complaint.
This order will not repeat or resolve all of the arguments in
the motion to dismiss, but several arguments merit
Bank of America argues persuasively that
Rooker-Feldman bars the fraud claim. Responding that
Bank of America “gross[ly] misappl[ies]”
Rooker-Feldman, the plaintiff argues that the fraud
claim “do[es] not require a determination that the
state court erroneously entered the foreclosure
judgment.” (Doc. 47 at 4) According to the plaintiff,
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