Brown v. Bank of America
67 F. Supp. 3d 508
D. Mass.2014Background
- Brown, pro se, sues Bank of America and BAC alleging delay and misrepresentation in loss-mitigation efforts leading to foreclosure.
- Brown’s 2007 loan was secured by a mortgage on 41 Armandine Street, Boston, MA.
- By 2009 Brown fell behind on payments; BANA offered a loss-mitigation program but allegedly stopped responding to documents.
- BAC took over servicing in 2009-2010, promising a HAMP modification after receiving documents and three TPP payments.
- Brown submitted documents and made TPP payments; BAC allegedly failed to grant modification and kept requesting more documents while pursuing foreclosure.
- Final events include a 2011 sale, a 2012 mortgage discharge, a 2012-2013 regulatory settlement payment, and subsequent communications alleging ongoing issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counts 2-3 meet 93A pleading standards. | Brown argues misrepresentation and delay in mortgage modification constitute 93A unfair/ deceptive acts. | BANA/BAC contends no independent 93A violation from minor missteps. | Counts 2-3 survive; pattern of delay/misrepresentation alleged with injury. |
| Whether Count 1 fails due to lack of economic injury. | Brown asserts injury from improper hazard-insurance charges. | Charges caused no economic injury; emotional distress claimed. | Count 1 dismissed for lack of economic injury. |
| Whether Count 4 (oral contract) is adequately alleged. | Brown claims an oral agreement for a TPP with modification in exchange for documents/payments. | No clear, enforceable oral contract; issues for summary judgment. | Count 4 adequately pleads consideration via new detriments; dispute left for summary judgment. |
| Whether Count 5 (Servicer Agreement breach) is viable. | Breaches of HAMP Servicer Participation Agreement alleged. | Borrowers not third-party beneficiaries of such agreements. | Count 5 dismissed. |
| Whether Count 9 (declaratory relief) is duplicative or inadequately pled. | Requests declaration of statutory/contractual duties and property ownership. | Lacks specificity and duplicative if tied to other claims. | Count 9 dismissed as duplicative and inadequately pled. |
Key Cases Cited
- Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47 (1st Cir. 2009) (establishes framework for unlawful trade practice analysis under 93A)
- Sloan v. Burrows, 357 Mass. 412, 258 N.E.2d 303 (Mass. 1970) (consideration rule for preexisting duties in contract formation)
- Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342 (D. Mass. 2011) (new legal detriments may constitute consideration for modified promises)
- Kozaryn v. Ocwen Loan Serv., LLC, 784 F.Supp.2d 100 (D. Mass. 2011) (courts recognize independent 93A claims from HAMP-related conduct)
- Hanrahran v. Specialized Loan Serv., LLC, 54 F.Supp.3d 149 (D. Mass. 2014) (pattern of misrepresentations and delay in modifying loans can support 93A claim)
- Dill v. Am. Home Mortg. Serv., Inc., 935 F.Supp.2d 299 (D. Mass. 2013) (conduct related to loan modification handling can violate 93A)