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Alverson v. PNC Bank

United States District Court, S.D. Alabama, Southern Division

December 15, 2014

ERNEST MICHAEL ALVERSON and SADIE B. ALVERSON Plaintiffs,
v.
PNC BANK, a National Banking Association, Defendant.

ORDER

CHARLES R. BUTLER, Jr., Senior District Judge.

This matter is before the Court on Defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 5.) The motion has been fully briefed by the parties. (Docs. 6, 8 & 10.) Upon due consideration of the issues raised and the relevant law, the Court finds that the motion is due to be granted.

Factual & Procedural Background

This action arises from attempts by the Plaintiffs, Ernest Michael Alverson and Sadie B. Alverson (the Alversons), to obtain a loan modification from their mortgagee, Defendant PNC Bank. On March 12, 2007, the Alversons "entered into a mortgage with PNC encumbering property [their home] owned by them in Baldwin County, Alabama." (Compl, ¶ 2, Doc. 1-1.) The Alversons subsequently "incurred substantial physical and economic setbacks" and, beginning in November 2012, "requested individually and through counsel that the loan be modified based on their economic and physical conditions." (Id. ¶ 3.) Between November 2012 and January 2014, Plaintiffs submitted five loan modification packages to PNC. "As to the majority of the submissions..., Plaintiffs received no communication back whatsoever from PNC although on occasion Plaintiffs, after retaining counsel received communications from PNC that their loan modification package needed to be supplemented." (Id. ¶ 4.) Counsel, after correspondence with PNC, would supplement the packages as requested. However, "the loan modification packages submitted... by the Plaintiffs... were not processed, " and no reason was given for PNC's failure to do so. (Id.) During this time, PNC communicated with the Alversons directly "twenty to thirty" times, with notifications that their loan was in default and threatening foreclosure, even though PNC had been given notice that the Alversons were represented by counsel. (Id. ¶ 5.)

In December 2013, Plaintiffs received "notification that their loan could not be modified as they had not submitted loan modification documentation to support the application." (Id. ¶ 7.) PNC did not immediately explain how the loan modification request was deficient. (Id.) Plaintiffs allege that they "have exhibited to PNC through Social Security disability records, income records, hardship affidavits, and other expenditures and debts, that they would be able to service the mortgage indebtedness if the same were modified." (Id. ¶ 8.)

In mid-January 2014, counsel for PNC contacted Plaintiffs' counsel "requesting that the same package be faxed as it had previously been emailed, notwithstanding the fact that it was received by e-mail, it had to be faxed, [and]... it was faxed on or about January 20, 2014." (Id.) After the Alversons threatened legal action in late January 2014, PNC's counsel requested that the Alversons "refrain from filing suit so that the matter could be resolved." (Id. ¶ 10.) Communications between counsel for the parties continued from February through June 2014. On June 3, 2014, Defendant's counsel represented to Plaintiffs' counsel "that there was currently no foreclosure sale pending given the status of the negotiations." (Id. ¶ 11.) However, in a letter dated June 9, 2014, PNC notified Plaintiffs' counsel "that in fact the foreclosure was scheduled for July 14, 2014." (Id. ¶ 13.) Further communications between counsel ensued. The July foreclosure sale was cancelled but was reset for August 11, 2014. Plaintiffs filed this lawsuit on August 8, 2011.

Plaintiffs filed the underlying Complaint in the Circuit Court of Baldwin County on August 8, 2014 asserting claims against PNC Bank for negligence, wantonness, and violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692a-1692p, and the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681a-1681x.. The Complaint alleged damages in the amount of $1 million and also requested a temporary restraining order (TRO) enjoining the scheduled foreclosure sale of their property. On August 11, 2014, the date of the scheduled sale, a TRO was entered by Baldwin County Circuit Judge Lang Floyd. On August 15, 2014, PNC filed a notice of removal in this Court based on both diversity and federal question jurisdiction. Shortly after removal, PNC filed a motion to dismiss for failure to state a claim upon which relief can be granted.

Issues Raised

Defendant contends the facts alleged in the Complaint do not support a claim for relief under state or federal law. In response, Plaintiffs argue that their state law claims for negligence and wantonness should survive the motion to dismiss. Plaintiffs, however, appear to have abandoned their federal law claims. They do not address these claims (both contained in Count III of the Complaint) at all in their response. Moreover, they conclude their brief by "request[ing] that the Motion to Dismiss as filed by Defendant, PNC Bank, N.A., be denied as to Counts I and II." Consequently, the Court considers the motion to be unopposed as to Count III and below addresses the sufficiency of Plaintiffs' negligence and wantonness claims under Alabama law.

Standard of Review

A complaint must "set forth a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court set forth the parameters of a wellpleaded complaint. A claim for relief "must set forth enough factual matter (taken as true) to suggest [the required elements of a cause of action]." Id. at 556; see also Watts v. Florida Int'l University, 495 F.3d 1289, 1295 (11th Cir. 2007) (applying Twombly). Furthermore, a complaint must "provide the defendant with fair notice of the factual grounds on which the complaint rests." Jackson v. Bellsouth Telecommc'ns, Inc., 372 F.3d 1250, 1271 (11th Cir. 2004).

In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009), the Supreme Court further refined the threshold requirements for a claim under Rule 8(a)(2).

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. ...

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