Prickett v. BAC Home Loans
946 F. Supp. 2d 1236
N.D. Ala.2013Background
- Plaintiffs sue Bank of America, N.A. (BANA) in a severed, post-2012 action addressing mortgage servicing and modification issues.
- Eleven parties filed originally; the court severed the action into five cases and Plaintiffs amended on January 14, 2013.
- Plaintiffs allege nine claims against BANA: wrongful foreclosure, slander of title, wantonness, fraud/intentional misrepresentation, breach of contract, negligence per se, breach of the covenant of good faith and fair dealing, unjust enrichment, and FDCPA violations.
- BANA renewed its Rule 12(b)(6) dismissal motion; the court analyzes each claim under Twombly/Iqbal standards.
- The court ultimately grants in part, denies in part, and defers ruling on one claim to allow amending, applying Alabama law and FDCPA standards.
- Facts include: Plaintiffs’ mortgage loan during 2007, job loss in 2010, alleged modification trial plan beginning February 2010, partial payments accepted for ~16 months, July 2011 payment rejected, mispostings of April 2010 payment, and foreclosure notices leading to the assertion of various claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wrongful foreclosure viability | Plaintiffs allege foreclosure scheduling harmed their title. | Foreclosure scheduling alone does not constitute wrongful foreclosure under Alabama law. | Dismissed; no actual foreclosure occurred and claim fails even if proven. |
| Slander of title plausibility | Publication to third party occurred via foreclosure notice and law firm involvement. | Publication to a third party not adequately pleaded; evidence was raised post-pleading. | Dismissed; failure to plead publication to a third party and special damages. |
| Fraud — intentional misrepresentation | Specific misrepresentations alleged in part within broad pleading; sufficient under 9(b) when considered with incorporated facts. | Initial allegations lack particularity required by Rule 9(b). | Denied; claim plausibly pled, with sufficient reliance and detail to survive at this stage. |
| Breach of contract viability | Plaintiffs signed modification documents and alleged defendant accepted payments for over a year. | No enforceable written modification contract alleged to modify loan terms. | Denied; pleadings show a contractual relationship and potential breach; survives motion. |
| FDCPA viability (debt collector status) | BANA’s notices and servicing constitute a debt collection. | FDCPA excludes mortgagees servicing non-default debt at time of acquisition; no debt collector status pleaded. | Dismissed with opportunity to amend; plaintiffs may plead facts showing debt collector status if any exist. |
Key Cases Cited
- Reeves Cedarhurst Dev. Corp. v. First Fed. Sav. and Loan, 607 So.2d 180 (Ala. 1992) (wrongful foreclosure requires actual sale for relief under Alabama law)
- Blake v. Bank of Am., N.A., 845 F.Supp.2d 1206 (M.D. Ala. 2012) (Alabama does not recognize negligent mortgage servicing as a tort; contract governs duties)
- Starship Enterprises of Atlanta, Inc. v. Coweta Cnty., 708 F.3d 1243 (11th Cir. 2013) (motion-to-dismiss review; documents attached to motion may be considered if central to claim)
- Ziemba v. Cascade Int’l Inc., 256 F.3d 1194 (11th Cir. 2001) (Rule 9(b) particularity requires specifics of fraud)
- Hopper v. Solvay Pharmaceuticals, Inc., 588 F.3d 1318 (11th Cir. 2009) (handled with notice-pleading; details of fraud timing and actor matter)