Parks v. BAC Home Loan Servicing, LP
2011 U.S. Dist. LEXIS 155368
E.D. Va.2011Background
- Parks secured a loan with BAC using her home in October 2005.
- After job loss in 2010, Parks pursued a HAMP modification; BAC sent and Parks completed the modification package.
- BAC advised modification would be granted if Parks was eligible for HAMP; Parks provided required documents and fees for about five months.
- In April 2011 BAC denied the modification, stating Parks’ income was too high.
- Since July 22, 2011, Parks’ home has been in foreclosure; PFC acted as BAC’s foreclosure agent.
- Parks filed suit seeking to enjoin the foreclosure and recover related fees on theories tied to HAMP, contract, and implied duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Private right to enforce HAMP | Parks asserts a private right to enforce HAMP. | BAC/PFC argue no private HAMP right exists. | HAMP private right not recognized; claims dismissed. |
| Contractual basis for modification independent of HAMP | Modification application constitutes a separate contract claim. | No independent contract; application is tied to HAMP. | No independent contract; breach claim fails. |
| Breach of implied duty of good faith and fair dealing | Implied duty to act in good faith in modification process. | Claim merely repackages HAMP claim. | Dismissed as duplicative of HAMP claim. |
| Liability of PFC for foreclosure conduct | PFC violated agreement by foreclosing without note-holder certification. | PFC was not a party to the alleged agreement with Parks. | Dismissed as failings to allege PFC’s contractual involvement; counts dismissed. |
Key Cases Cited
- Iqbal v. United States, 129 S. Ct. 1937 (U.S. 2009) (plausibility standard for pleading required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (courts require plausibility, not mere conclusory allegations)
- Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999) (summary judgment standard in plausibility analysis)
- Sherman v. Litton Loan Servicing, 796 F.Supp.2d 753 (E.D. Va. 2011) (HAMP modification is not a contract unless offer is definite)
- Kaltman v. All Am. Pest Control, Inc., 281 Va. 483 (Va. 2011) (contract damages require contractual duty; legal duty not implied)