United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE
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 concludes that the motion is due to be
granted in part and denied in part.
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).
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. (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).
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.
STANDARD OF REVIEW
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.
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)).
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
STATEMENT OF FACTS
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.
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.).
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.”
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.).
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.).
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).
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.).
January 16, 2018, Jones sent a qualified written request
(“QWR”) 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).
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.
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
The Federal Claims
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.