Ferrerr v. U.S. Bank, N.A.

MARIA DIAZ (Nee Ferrerr), and ENRIQUE DIAZ, Plaintiffs, v. U.S. BANK, N.A., as trustee for MLMI Surf Trust Series 2007-AB1,WILSHIRE CREDIT CORPORATION, and BANK OF AMERICA, N.A., Defendants.

Case No. 14-CIV-20741-BLOOM/Valle

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

September 15, 2014

ORDER ON DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT¹

This matter is before the Court upon Defendants, U.S. Bank, N.A., as trustee for the MLMI Surf Trust Series 2007-AB1 ("U.S. Bank"), Wilshire Credit Corporation ("Wilshire"), and Bank of America N.A.'s ("BANA") (collectively, "Defendants") Motion to Dismiss Plaintiffs' First Amended Complaint, ECF No. [33]. The Court has reviewed the motion, all supporting and opposing filings, and the record in this case, and is otherwise fully advised in the premises. For the reasons that follow, Defendants' Motion is granted in part and denied in part.

I. INTRODUCTION

The instant litigation stems from a foreclosure action initiated against Plaintiffs, Maria Diaz (Nee Ferrer) and Enrique Diaz ("Plaintiffs"), and relates to BANA's involvement in the Troubled Asset Relief Program ("TARP"), and, more specifically, the United States Treasury'sHome Affordable Modification Program ("HAMP").² According to the First Amended Complaint, U.S. Bank initiated foreclosure proceedings on Plaintiffs' home in 2007. ECF No. [24] at ¶ 4. During this litigation, Wilshire allegedly entered into a stipulation agreement with Plaintiffs pursuant to the aforementioned federal programs, permitting Plaintiffs to pay installments in exchange for the dismissal of the foreclosure proceedings and a loan modification. Id. at ¶¶ 5-8. Then, in 2009, Wilshire offered Plaintiffs a Trial Period Plan ("TPP"), wherein Plaintiffs would make three monthly payments and the mortgage would be modified in order to avoid any future foreclosure. Id. at ¶ 7. Rather than comply with the terms of the TPP, Wilshire purportedly transferred Plaintiffs' loan to BANA, as one of its agents. Id. at ¶¶ 9, 11-12. At some point after the transfer, BANA allegedly attempted to accelerate Plaintiffs' loan. Id. at ¶ 13. According to Plaintiffs, they began communicating extensively with BANA; however, despite attempts to comply with BANA's multitude of requests, Plaintiffs contend that BANA utilized pernicious tactics in order to violate the terms of the TPP and to bully Plaintiffs into making unnecessary payments. Id. at ¶¶ 14-20, 25-29.

As a result of these allegedly deceptive and deceitful practices, Plaintiffs initiated this action on February 28, 2014, asserting counts for breach of contract and breach of the duty of good faith and fair dealing, as well as a violation of Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. ("FDUTPA"). See ECF No. [1]. On June 3, 2014, Plaintiffs filed an Amended Complaint³ setting forth substantially similar claims, but furtherdelineating their causes of action, as well as adding various state law claims. See ECF No. [24]. Presently, Plaintiffs assert claims for breach of contract (Count I), violation of FDUTPA (Count II), civil theft (Count III), fraud (Count IV), breach of fiduciary duty (Count V), and negligence (Count VI). See id. at ¶¶ 33-38.

II. LEGAL STANDARD

A pleading in a civil action must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). Nor can a complaint rest on "'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized "[t]o survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002). While the Court is required to accept all of the allegations contained in the complaint and exhibits attached to the pleadings as true, this tenet is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). The Supreme Courtwas clear that courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.

III. DISCUSSION

Defendants assert that Plaintiffs' First Amended Complaint must be dismissed for several reasons. See ECF No. [33]. Defendants first claim that Plaintiffs' First Amended Complaint constitutes an impermissible "shotgun pleading." Id. at 5-6. Second, Defendants contend that even when ignoring the manner in which the First Amended Complaint is pled, the pleading nonetheless fails to state a claim upon which relief can be granted. Id. at 6-13. The Court addresses these arguments in turn.

A. "Shotgun Pleading"

This Court and the Eleventh Circuit has warned litigants that shotgun pleadings tend to "impede the orderly, efficient and economic disposition of disputes as well as the court's overall ability to administer justice." Degirmenci v. Sapphire-Fort Lauderdale, LLLP, 693 F. Supp. 2d 1325, 1336 (S.D. Fla. 2010) (citing Byrne v. Nezhat, 261 F.3d 1075, 1128-31 (11th Cir. 2001)); see also Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296 n.10 (11th Cir. 2002) (expounding the various ways in which shotgun pleadings harm the courts and other litigants). By definition, a shotgun pleading does not comport with Rule 8's requirement of a short and plain statement of the claim. See Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001). Generally, this type of pleading "contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions." Strategic Income Fund, 305 F.3d at 1295. At first glance, Plaintiffs' First Amended Complaintmay seem to "fit the bill"; however, further examination reveals that this pleading suffices in light of the circumstances.

Relying on S.E.C. v. City of Miami, Fla., 988 F. Supp. 2d 1343 (S.D. Fla. 2013), Plaintiffs contend that their First Amended Complaint is adequately crafted. In S.E.C., this Court held that a complaint was not a shotgun pleading because it did not incorporate every preceding allegation into each individual count, but rather, only incorporated the plaintiff's general allegations into the individual claims. Id. at 1354-55. Noting that all the background allegations were intended to be applicable to each count, the Court stressed that there was no other way for the plaintiff to re-plead, short of allowing the plaintiff to repeat the incorporated paragraphs into each count. Id. This Court finds this reasoning applicable and persuasive. Although Plaintiffs' First Amended Complaint merely sets forth thirty-one factual allegations seemingly applicable to all five counts, see ECF No. [34], the pleading is not incomprehensible. See Pelletier v. Zweifel, 921 F.2d 1465, 1517 (11th Cir. 1991), abrogated on other grounds by Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146 (11th Cir. 2011) (describing a shotgun pleading as containing "rambling recitations" of fact). Like the complaint in S.E.C., Plaintiffs' factual allegations are succinct, reasonably formatted, and describe the factual circumstances and general course of dealing applicable to each individual count. Amendment in this matter would simply require Plaintiffs to include nearly every factual allegation, almost verbatim, in the individual claims. See generally Anderson v. Dist. Bd. of Trustees of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) (noting that the proper procedural move when presented with a shotgun pleading is to move the court to require the plaintiff to file a more definite statement). Moreover, and most notably, Plaintiffs are proceeding pro se. This Court is required to afford pro se litigants a leniency "not enjoyed by those with the benefits of a legal education." See Houman v.Lewis, 2010 WL 2331089, at *1 (S.D. Fla. June 10, 2010) (citing GJR Investments, Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359 (11th Cir. 1998), overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Thus, pleadings submitted by a pro se litigant "are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Trawinski v. United Technologies, 313 F.3d 1295, 1297 (11th Cir. 2002) (citation omitted). Accordingly, the Court declines to find that Plaintiffs' Amended Complaint constitutes a shotgun pleading. See Jones v. Florida Power & Light Co., 2010 WL 1740713, at *2 (S.D. Fla. Apr. 29, 2010) (finding that a complaint was not a shotgun pleading where the general allegations were incorporated into each count).

B. The Merits of Plaintiffs' Individual Claims

Plaintiffs' first count is for breach of contract, presumably for breach of the TPP. See ECF No. [37] at 5-7. Defendants correctly assert that HAMP does not provide borrowers with a private right of action. Nelson v. Bank of Am., N.A., 446 F. App'x 158, 159 (11th Cir. 2011) (per curiam) (citation...