Tubalinal, Jr. v. BAC Home Loans Servicing, LP
1:11-cv-04104
N.D. Ill.Jul 18, 2012Background
- Tubalinal plaintiffs, pro se, sue Bank of America and BAC Home Loans Servicing over a mortgage loan arising from a Countrywide loan later acquired by BoA.
- Plaintiffs allege automatic weekly loan payments were cancelled unilaterally after their loan modification application.
- They entered a loan modification trial period and made payments; BoA later treated the modification as a new agreement with different terms.
- BoA sent default notices during the modification process, while plaintiffs believed they were ahead due to accelerated payments.
- In February 2011 BoA began foreclosure proceedings; plaintiffs filed a fourth amended complaint asserting ten state and federal claims.
- The court granted BoA’s Rule 12(b)(6) motion to dismiss, with one exception allowing a fifth-amended breach-of-contract claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract under trial modification | Tubalinal asserts BoA breached the modification terms. | BoA contends no breach of the original mortgage or trial terms occurred; only the modification terms may apply. | Count 4 dismissed without prejudice; potential fifth amended complaint allowed. |
| Negligence claim viability | Texas law permits tort claims alongside contract. | Mortgage agreement governs; no independent tort duty pleaded. | Count 1 (negligence) dismissed. |
| Implied covenant of good faith and fair dealing | A special relationship implied duty may arise from the contract. | No special relationship; duty is contractual, not independent. | Count 5 dismissed. |
| Fraud claim sufficiency under Rule 9(b) | Defendants misrepresented terms during modification. | Fail to plead who said what, where, when; some statements contradicted by exhibits. | Count 2 dismissed for failure to plead fraud with specificity. |
| RESPA private right of action | BoA violated RESPA by mismanaging records and responding to requests. | RESPA does not create a private right of action for these facts; claims vague. | RESPA claim dismissed. |
Key Cases Cited
- Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012) (trial modification can support breach of contract under Illinois law)
- Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029 (5th Cir. 2010) (fraud elements; Rule 9(b) requirements apply)
- Elliott v. Methodist Hosp., 54 S.W.3d 789 (Tex. App. 2001) (extreme/outrageous conduct standard in emotional distress)