De Franceschi v. BAC Home Loans Servicing, L.P.
477 F. App'x 200
5th Cir.2012Background
- Plaintiffs De Franceschi and Riedo bought a duplex in January 2007 financed by Greenpoint; the loan was assigned to U.S. Bank the same month and BAC later became the servicer in December 2008.
- They allegedly were overcharged for force-placed insurance when they already had coverage, and BAC eventually removed the insurance but did not fully credit their account.
- The loan went into default after missed payments; BAC sent default and acceleration notices in early 2009, warning of foreclosure and loss-mitigation options.
- In June 2009 the plaintiffs attempted to discuss a loan modification; BAC instructed them to fax financial documents, but miscommunications allegedly led to denial and foreclosure risk.
- The property was sold at a July 7, 2009 foreclosure to U.S. Bank after the plaintiffs reportedly failed to re-submit modification materials due to confusion over the fax number.
- The district court granted summary judgment to BAC and U.S. Bank; plaintiffs appeal arguing procedural and evidentiary issues across multiple claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by granting summary judgment on all claims without ruling on the quiet-title/trespass-to-try-title claims | De Franceschi and Riedo relied on superior title via breach of unilateral contract | Title claims were derivative of contract claims and fail if those fail | Harmless error; no plain error in failing to address those claims; affirmed on other grounds |
| Whether the district court properly denied leave to amend under Rule 16 | Plaintiffs showed good cause and diligence for amendment | Amendment was untimely as facts were known before scheduling deadline | District court did not err in denying leave to amend |
| Whether district court properly dismissed theories not pled in the complaint | Breach of contract, nondisclosure, and force-placed insurance theories were pleaded | New theories not described in complaint and not raised in response to summary judgment | Correctly dismissed those theories for lack of proper pleadings |
| Whether the unilateral oral modification contract claim was properly dismissed | There was a possible unilateral oral contract for modification | No evidence of a binding unilateral contract; miscommunications irrelevant | No error; court did not err in dismissing the claim |
| Whether the negligent-misrepresentation and fraud claims were properly dismissed | Statements about non-foreclosure pending modification created potential misrepresentation | Statements were promises of future action not actionable misrepresentations | Correctly dismissed; statements were not actionable under governing law |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard requires fair notice of claims)
- Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108 (5th Cir. 2005) (pleading sufficiency and notice standards in the Fifth Circuit)
- Fisher v. Metro. Life Ins. Co., 895 F.2d 1073 (5th Cir. 1990) (reliance on pleadings; summary judgment standards)
- Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744 (5th Cir. 2006) (pleading and summary judgment standards; fair notice)
- Scheve v. Moody Found., 264 F.3d 1141 (5th Cir. 2001) (standard for dismissing non-pleaded theories in summary judgment)