MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Defendant Bank of America’s Motion to Dismiss First Amended Complaint [Doc. No. 32]. For the reasons set forth below, the Court grants Bank of America’s motion.
II. BACKGROUND
A. Plaintiffs Mortgage Loan and Loan Modification
Plaintiff Daniel Berger (“Plaintiff’ or “Berger”) brings this action, on behalf of himself and other similarly-situated homeowners who were allegedly wrongfully treated as being in default on their mortgage, against Defendants Nationstar Mortgage LLC (“Nationstar”) and Bank of America, N.A. (“Bank of America”). The lawsuit arises out of Defendants’ alleged failure to properly transfer and enforce Plaintiffs modified mortgage loan.
Berger purchased a home in Spring Lake Park, Minnesota on May 22, 2000. (First Am. Compl. ¶ 8 [Doe. No. 22].) On June 29, 2006, Plaintiff obtained a mortgage loan (“Mortgage”) from Mortgage Electronic Registration Systems, Inc., and the Mortgage was recorded on July 10, 2006. (See id. ¶9.) The Mortgage was later assigned to BAC Home Loans Servicing, LP on July 1, 2011, and the assignment (“Assignment” or “Assignment of Mortgage”) was recorded on July 12, 2011. (See id. ¶ 10.) BAC Home Loans Servicing later merged with Bank of America, and, as a result of this merger, Bank of America became the successor to Plaintiffs Mortgage loan. (Id. ¶ 11.)
Berger applied to modify the terms of his loan through the Home Affordable Modification Program (“HAMP”). (Id. ¶ 13.) His application was granted and Bank of America executed the loan modification (“Loan Modification”) on June 24, 2013. (Id. ¶ 14.) The Loan Modification added all of the amounts past due to the principal balance of Plaintiffs promissory note, and Berger’s modified payments were set to begin on June 1, 2013 in the amount of $1,317.54 per month. (Id.; Ex. 3, “Loan Modification” at 2[Doc. No. 22-l].)
On July 18, 2013, Bank of America assigned Plaintiffs loan to Nationstar. (Id.
Plaintiff alleges that despite his Loan Modification, Nationstar proceeded to foreclose on his home and sold the home by sheriffs sale to Bank of America on October 4, 2013. (See First Am. Compl. ¶ 18 [Doc. No. 22].) Although Nationstar admits that it sold Plaintiffs home in a non-judicial foreclosure on October 4, 2013, Nationstar denies that it was unwilling to enforce the Loan Modification. (See Na-tionstar Answer ¶ 18 [Doc. No. 30].) Rather, Nationstar contends that it informed Berger “during a telephone conversation on July 29, 2013, that it would honor the Bank of America Modification, and would accept payments in the Bank of America Modification amount.” (See id. ¶ 42) (emphasis original).
Plaintiff contends that in February 2014, he demanded that both Defendants rescind the October 4, 2013 sheriffs sale. (First Am. Compl. ¶ 19 [Doc. No. 22].) Berger explains that the sale was eventually rescinded because of Defendants’ failure to record the Assignment of Plaintiffs Mortgage to Nationstar prior to the sale. (Id. ¶ 20; Nationstar Answer, Ex. A, “Stipulation and Order Rescinding Sale” [Doc. No. 30-1].) As the Court noted above, Defendants did not record the Assignment until November 15, 2013. (First Am. Compl. ¶ 16 [Doc. No. 22].)
Berger argues that he suffered damages as a result of Nationstar’s unlawful foreclosure on this home. (Id. ¶24.) The damages allegedly include unnecessary expenses in defending the wrongful foreclosure, unnecessary damage to Berger’s credit rating, and unwarranted fees charged against his mortgage loan account. (Id.)
B. Plaintiffs Claims
Plaintiff asserts four common law and statutory claims against Nationstar, on behalf of himself and three classes of Plaintiffs. (Id. ¶¶26, 35-58.) In addition, in Count V, Berger asserts a negligence claim against Bank of America, on behalf of himself and a class of:
mortgagors who obtained a permanent loan modification from Bank of America prior to the time that the servicing and/or payment rights to their loan were transferred to Nationstar, and were not in default on their modified loan, but who Nationstar treated as being in de*1124 fault at any time on or after December 18, 2008.
(See id. ¶¶ 27, 59-68.) Specifically, Plaintiff contends that Bank' of America owed him a duty of reasonable care when transferring his Mortgage, and other similar mortgages, to Nationstar, and it breached that duty by failing to adequately inform Nationstar about his and others’ permanent loan modifications. (Id. ¶¶ 61-62.)
C, Procedural Posture
On January 23, 2015, Bank of America filed a motion [Doc. No. 32] and a supporting brief [Doc. No. 34] to dismiss Count V of Plaintiffs First Amended Complaint. On March 20, 2015, Plaintiff filed a response brief [Doc. No. 54], and Bank of America filed a reply on April 3, 2015 [Doc. No. 56]. The Court heard oral argument on Defendant’s motion on April 30, 2015.
III. DISCUSSION
A. Standard of Review
Defendant moves to dismiss Plaintiffs Count V, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. When evaluating a motion to dismiss, the Court assumes the facts in the Complaint to be true and construes all reasonable inferences from those facts in the light most favorable to Plaintiff. Morton v. Becker,
To survive a motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
B. Plaintiffs Count V: > Negligence Claim
Under Minnesota law, to state a prima facie case for negligence, Berger must demonstrate that: (1) Bank of America owed Plaintiff a “duty” of care when
Defendant argues that Plaintiffs negligence claim is barred by the independent duty rule. (See Def.’s Mem. at 2 [Doc. No. 34].) “The independent duty rule provides limitations on when a party may assert tort claims against another with whom the party has a contractual relationship.” Nelson v. Saxon Mortgage, Inc., No. 12-cv-1312 (JRT/JJG), 2014 WL. 186163, at *23 (D.Minn. Jan. 16, 2014) (citing Hanks v. Hubbard Broad., Inc.,
1. Independent Duty Rule
As the Court explained above, in order to survive dismissal, Berger must first demonstrate that Bank of America owed him a duty of care when assigning and transferring his Mortgage to Nations-tar. ■ “Existence of a duty in a negligence case is a question of law.” Funchess v. Cecil Newman Corp.,
In other words, under Minnesota law, a plaintiff does not have a cause of action for negligent breach of a contractual duty, and a contract claim should not be converted into a tort claim. See Lesmeis
“The test is whether a relationship would exist which would give rise to the legal duty "without enforcement of the contract promise itself.” Hanks,
2. Bank of America Did Not Have an Independent Duty
Here, a relationship between Bank of America and Berger, which would give rise to Bank of America’s duty to transfer Berger’s loan with reasonable care, would not exist without the Mortgage, the Loan Modification, and/or the Assignment contracts themselves. See Hanks,
Plaintiff argues that the independent duty rule does not foreclose his negligence claim since his claim does not “ ‘fall within the scope’ of the contract between [Bank of America] and Plaintiff because it is not based on a breach of the modification agreement.” {See PL’s Mem. at 11 (internal citations omitted) [Doc. No. 54].) The Court disagrees.
Although Plaintiff correctly notes that the Loan Modification contract does not contain a section “that governs what duties [Bank of America] had when it transferred Plaintiffs mortgage to Nationstar,” (PL’s Mem. at 11 [Doc. No. 54]), two other contract provisions, read together, demonstrate that Bank of America was contractually obligated to inform Nationstar about the Loan Modification. The first relevant provision is in the Loan Modification itself. The Loan Modification’s “New Mortgage Payment” section expressly states that Berger’s “new modified monthly mortgage payment is $1,317.54” (First Am. Compl., Ex. 3, “Loan Modification” at 2 [Doc. No. 22-1]). The second relevant contractual provision is located in the Assignment of Mortgage. In the Assignment, Bank of America agreed to transfer “all beneficial interest under [Berger’s Mortgage] ... together with the note(s) and obligations therein described and the money due and to become due thereon with interest and all rights accrued or to accrue under [Plaintiffs] Mortgage.” (First Am. Compl., Ex. 4, “Assignment of Mortgage” [Doc. No. 22-1].) Therefore, by signing this contract, Bank of America agreed to provide Nationstar with accurate information that summarized the parties’ contractual obligations at the time the Assignment was made. Because the Loan Modification altered the rights of the parties and changed Berger’s payment obligations, Bank of America was contractually obligated to inform Nationstar about the Loan Modification.
Although Plaintiff “does not cite to any contractually imposed duties” (PL’s Mem. at 11 (emphasis original) [Doc. No. 54]) in Count V of his Complaint, Berger’s failure to properly allege a contract claim does not validate his improperly pled tort claim against Bank of America. In sum, insofar as Plaintiff argues that his “negligence” claim does not fall within the scope of the contract he had with Bank of America, the Court finds that this argument fails.
4. Irrelevancy of Status of Current Contractual Relationship Between Plaintiff and Bank of America
Plaintiff also contends that the independent duty rule does not apply in this case because although “Plaintiff had a contractual relationship with [Bank of America], ... that relationship ended when [Bank of America] transferred, his mortgage to Na-tionstar.” (See PL’s Mem. at 11 (emphasis original) [Doc. No. 54].) The Court disagrees;
First, in his Complaint, Berger alleges that Bank of America owed him “a duty of care when transferring his mortgage to Nationstar.” (See First Am. Compl. ¶ 60 (emphasis added) [Doc. No. 22].) Therefore, Plaintiff alleges that Bank of America breached its duty while transferring his Mortgage, not after the servicing transfer was complete. As Defendant explains, pursuant to Plaintiffs own Complaint, Bank of America allegedly breached its duty “before the servicing transfer was complete, and before any contractual privity between. Plaintiff and Bank of America .‘ended.’ ” (See Def.’s Reply at 4-5 (emphasis original) [Doc. No. 56].)
Second, simply because the contractual relationship between Bank of America and Plaintiff has now ended does not mean that Plaintiff is foreclosed from bringing a
5. Distinguishable Cases
Plaintiff cites’a slew of cases that he believes demonstrate Minnesota’s “long tradition of holding banks to the same negligence standard as other actors when there is a foreseeability of harm.” (See Pl.’s Mem. at 7- [Doc. No. 54].) However, all of these cases are distinguishable. For instance, most of -the cases do not involve preexisting contractual relationships between the plaintiffs and the defendant-banks. See City of St. Paul v. Merchants’ Nat. Bank,
In another case cited by Berger, Langeland v. Farmers State Bank of Trimont,
Unlike-Berger’s case, in Langeland, the plaintiffs likely did not have a viable contract claim. The plaintiffs’ agreement merely required the bank to “lend them additional money,” but likely did not require the bank to ensure that the redemption was successful. See id. at 28. Thus, the Langeland plaintiffs’ tort claim was not barred by the independent duty rule, because the bank’s duty did not fall within the scope of its contractual relationship with the plaintiffs. In contrast, here, Berger’s negligence claim falls within the scope of his contractual relationship with Bank of America, because the relevant contractual documents obligated Bank of America to inform ■ Nationstar about the Loan Modification.
Plaintiff also seeks to analogize this case to cases brought under California and Hawaii tort law. However, several of these cases are immaterial because, they involve borrowers suing banks for unsuccessful attempts to obtain loan modifications, rather than actions based on breaches of already existing loan modifications. See Yau v. Deutsche Bank Nat. Trust Co. Americas,
Finally, the remaining California cases that Plaintiff cites are distinguishable because they involve a special" relationship between the borrower and the lender, in which the defendant-bank “went beyond its role as a silent lender and loan servi-cer.” See Ansanelli v. JP Morgan Chase Bank, N.A., No. C 10-03892 WHA,
IV. ORDER
Based on all the files, records and proceedings herein, IT IS HEREBY ORDERED THAT Defendant Bank of America’s Motion to Dismiss First Amended Complaint [Doc. No. 32] is GRANTED, as detailed herein. The Court notes that Plaintiff may file a motion requesting leave to amend his Complaint to allege a contract claim, in lieu of a tort claim, against Defendant Bank of America, and requesting the Court to find that his amendment relates back to the date of his original Complaint.
Notes
. The Court notes that in Berger’s Complaint he alleges that pursuant to the Loan Modification, he owed “$1,317.57” a month. (Id. ¶ 15 [Doc. No. 22].) The Court assumes that this was a slight typographical error given the three cent inconsistency with the monthly payment detailed in the Loan Modification document itself.
. Nationstar appears to commit the same typographical error as Berger when reciting the monthly payment due pursuant to the Loan Modification. Like Berger, Nationstar states that Plaintiffs modified monthly payment was $1,317.57 (see id.), instead of $1,317.54, the amount that was recorded in the Loan Modification document.
. In his Complaint, Plaintiff references several specific documents including, but not limited to, the Mortgage, the Loan Modification, the Assignment of Mortgage, and Nationstar’s welcome letter. (See generally First Am. Compl. [Doc. No. 22].) Berger also attaches these documents as exhibits to his Complaint. (See id.., Exs. 1-9 [Doc. No. 22-1].) The Court refers to these documents as needed throughout the Order.
. The independent duty rule was established by the Minnesota Supreme Court in Wild v. Rarig,
. Defendant additionally argues that even if such an independent duty existed, Plaintiff fails to allege facts demonstrating that Bank of America plausibly breached that duty. (See Def.'s Mem. at 2 [Doc. No. 34].) Because the Court finds that Bank of America did not owe Plaintiff a duty of reasonable care, the Court need not address Bank of America’s plausibility argument.
.Plaintiff contends that the Court should apply a five-factor test, as other Minnesota state courts do, to determine if Bank of America owes a duty of care to Plaintiff. (See Pl.'s Mem. at 6 (citing Domagala,
. Minnesota courts have recognized that if a bank enters into a "special relationship” with its customer, beyond the typical lender-borrower relationship, then that relationship may give rise to a bank’s additional fiduciary duties. See Roers v. Countrywide Home Loans, Inc.,
. However, the Langeland Court ultimately held that the plaintiffs.failed to demonstrate an injury sufficient to recover on their negligent infliction of emotional distress claim. See id. at 32.