Jones v. Bank of America Na

          MEMORANDUM OPINION

          JOHN E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE

         In this action, Plaintiff Tyrone Jones has alleged a variety of federal and state law claims against Defendants Bank of America, N.A. and Carrington Mortgage Services, LLC (“Carrington”). (Doc. 18). The claims are based on allegations that Defendants falsely reported that Jones was in default on a mortgage loan and wrongfully initiated foreclosure proceedings on his property, among other things. (Id.). Defendants have moved for judgment on the pleadings. (Doc. 29). For the reasons that follow, the court^[1] concludes that the motion is due to be granted in part and denied in part.

         I. PROCEDURAL HISTORY

         Jones filed this action in the Circuit Court of Shelby County, Alabama, asserting fourteen separate claims against Defendants: negligence, wantonness, unjust enrichment, wrongful foreclosure, slander of title, breach of contract, fraud, false light, defamation/libel/slander, violation of the Truth in Lending Act, violation of the Real Estate Settlement Procedures Act, violation of the Fair Credit Reporting Act, violation of the Fair Debt Collection Practices Act, and a claim for declaratory relief. (Doc. 1-1 at 2-29). Defendants removed the action to this court and then moved to dismiss all of the claims contained in the complaint, or, to the extent any claims remained, moved for a more definite statement of those claims. (Docs. 1, 4).

         In response to the motion to dismiss, Jones filed a motion for leave to file an amended complaint, noting the different pleading standards in federal and state court. (Docs. 8, 9). The court granted Jones's motion to file an amended complaint, (doc. 10), and after two extensions, (docs. 11 & 16), Jones filed his amended complaint on May 21, 2018.^[2] (Doc. 18). The amended complaint contains a more detailed set of factual allegations and deleted three claims (wrongful foreclosure, slander of title and fraud), but otherwise the differences between the two complaints are minimal. (Compare Doc. 1-1 at 2-29 with Doc. 18).

         On July 9, 2018, Defendants filed an answer to the amended complaint. (Doc. 24). Defendants then filed the instant motion for judgment on the pleadings, reasserting most, if not all, of the same arguments presented in their original motion to dismiss. (Doc. 29). The motion has been fully briefed and is now ripe for decision.

         II. STANDARD OF REVIEW

         Defendants have moved for dismissal pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Under Federal Rule of Civil Procedure 12(c) “[a]fter the pleadings are closed . . . any party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001) (citation omitted). The standard for a motion for judgment on the pleadings is identical to the standard applicable when a complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6); see also Paradise Divers, Inc. v. Upmal, 402 F.3d 1087, 1089 (11th Cir. 2005).

         Rule 12(b)(6) authorizes the dismissal of all or some of the claims in a complaint if the allegations fail to state a claim upon which relief can be granted. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court assumes the factual allegations in the complaint are true and gives the plaintiff the benefit of all reasonable factual inferences. Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008). However, “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (“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.”). Nor is it proper to assume that a plaintiff can prove facts he has not alleged or that the defendants have violated the law in ways that have not been alleged. Twombly, 550 U.S. at 563 n.8 (citing Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526 (1983)).

         “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id., 550 U.S. at 555 (citations, brackets, and internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level. . . .” Id. Thus, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” i.e., its “factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citations omitted).

         III. STATEMENT OF FACTS

         Jones alleges that he bought property located at 128 Dallas Lane in Montevallo, Alabama, financed the purchase with United Wholesale Mortgage, and executed a mortgage with Mortgage Electronic Registration Systems, Inc. (“MERS”), “acting solely as nominee for United Wholesale Mortgage.” (Doc. 18 ¶ 5). The loan was later “assigned” to Bank of America and then to Carrington. (Id. ¶ 8). More specifically, Jones seems to allege that MERS sold and/or assigned the loan to Bank of America, and Bank of America also initially serviced the loan. (Id. ¶ 7). Then Carrington became the servicer of the loan on July 11, 2017. (Id. ¶ 7, 16). The amended complaint also alleges that at some time later, the loan was assigned to Carrington. (Id. ¶ 8, 20). Jones “disputes the validity” of the assignments, (id.), but provides no factual basis for this allegation and does not attach a copy of any allegedly defective or invalid assignments to the amended complaint or in opposition to judgment on the pleadings.

         On July 22, 2015, Jones entered into a loan modification agreement with Bank of America. (Id. ¶ 10). Jones signed all the paperwork and returned it to Bank of America as instructed. (Id.). Then, in September 2015, Jones attempted to make his payment under the loan modification, but Bank of America refused the payment “because its computer system still had his account in a delinquent status.” (Id. ¶ 11). Jones later called about the problem and Bank of America told him that it had not implemented the loan modification package “because his wife filed for chapter 13 Bankruptcy and she lived at the address.” (Id. ¶¶ 11, 12). Jones told Bank of America that he had not filed for bankruptcy and his wife was not on the mortgage loan account. (Id. ¶ 12). Nevertheless, Bank of America insisted that Jones' wife “give him a quitclaim deed divesting her of any interest in the property, and that the Bankruptcy court approve the loan modification and confirm that the wife had no interest in the property.” (Id.).

         At some later time, Bank of America filed a motion with the bankruptcy court “seeking an order from the court approving the loan modification agreement and confirm[ing] that she had no interest in said property.” (Id. ¶ 13). The bankruptcy court entered the order on April 26, 2016. (Id. ¶ 14). Bank of America, however, “failed and refused to implement the loan modification that it had agreed to do.” (Id.).

         During that time period, from August 2015 until July 2017, Bank of America refused to take payments from Jones, added unauthorized interest charges, fees and expense to Jones' mortgage debt. (Id. ¶ 15). Jones continued to call and inquire about his loan modification, but did not get any answers from Bank of America. (Id.).

         On July 11, 2017, Bank of America “purportedly transferred servicing right[s] as to the loan to Carrington.” (Id. ¶ 16). After Jones learned of the transfer, he called Carrington to tell them about the loan modification and that it had not been implemented. (Id.). Carrington “promised to look into it, but failed to do so.” (Id.).

         On October 1, 2017, Carrington initiated foreclosure proceedings on Jones's property “based on the erroneous and improper records which Bank of America sent to Carrington.” (Id. ¶¶ 17, 18). Jones repeatedly called Carrington to explain that he had been given a loan modification by Bank of America that had not been implemented, but Carrington “refused to look into it any further, refused to implement the loan modification agreement just as Bank of America had failed to do, and pushed forward with the foreclosure on the property.” (Id. ¶ 17). According to Jones, Carrington began foreclosure proceedings on his property despite knowing that “he was not in default as his account was current at the time of the acceleration because of the loan modification agreement.” (Id. ¶ 18).

         The foreclosure sale was reported to the national credit bureaus, which damaged Jones's reputation and credit. (Id. ¶ 19). Additionally, the foreclosure sale date was published in the newspaper in November and December 2017 and January 2018, and included false information regarding his alleged default. (Id.).

         On January 16, 2018, Jones sent a qualified written request (“QWR”)^[3] to both Carrington and the attorney for Carrington. (Id. ¶ 73). The letter included a statement for the reasons Jones believed there was an error regarding his mortgage loan and included sufficient details for Carrington to respond. (Id.). Carrington never acknowledged receipt of the QWR and never responded to it. (Id. ¶ 74).

         As of the time Jones filed his amended complaint, he continued to reside in the property. (Id. ¶ 5). It is unclear from the amended complaint whether a foreclosure sale was ever scheduled.

         IV. DISCUSSION

         In his amended complaint, Jones states eleven counts - four federal violations, six state law violations, and a count for declaratory judgment. (Doc. 18 at 8-26). The court first addresses the federal claims and then moves on to the state law claims.

         A. The Federal Claims

         In his amended complaint, Jones alleges that Carrington violated four federal statutes: the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq. (Count Seven); the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq. (Count Eight); the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq. (Count Nine); and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. (Count Ten). (Id. at 14-25). He also alleges that Bank of America violated TILA and the FCRA. (Id. at 14-16, 18-20 (Counts Seven & Nine)). Bank of America and Carrington have moved to dismiss all federal claims alleged in the amended complaint. (Doc. 29).

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