Morris v. Servicing

775 F.Supp.2d 255

Russel M. MORRIS and Jennifer L. Morris, Plaintiffs,

v.BAC HOME LOANS SERVICING, L.P., d/b/a Bank of America Home Loans, and Korde & Associates, P.C., Defendants.

Civil No. 1:10–11572–PBS.

United States District Court, D. Massachusetts.

April 4, 2011.

Josef C. Culik, Culik Law PC, Beverly, MA, for Plaintiffs.Mary Ellen Manganelli, Donn A. Randall, Bulkley Richardson & Gelinas LLP, Michael J. Stone, Jennifer L. Markowski, Peabody & Arnold LLP, Boston, MA, Daniel J. Finnegan, Bulkley, Richardson & Gelinas, Springfield, MA, for Defendants.

MEMORANDUM AND ORDER

SARIS, District Judge.I. INTRODUCTION

Defendant BAC Home Loans Servicing, L.P. (“BAC”) has moved to dismiss Plaintiffs Russell and Jennifer Morris' complaint, which alleges that BAC violated Mass. Gen. L. c. 93A, the Consumer Protection Act, by failing to comply with federal regulations relating to the Home Affordable Modification Program (“HAMP”). BAC argues that because HAMP does not provide for a private cause of action, the Plaintiffs have not stated a claim for relief. This Court disagrees. HAMP violations can give rise to a viable 93A claim if the activity would be independently actionable under Chapter 93A as unfair and deceptive. In this case, the plaintiffs have not alleged a sufficient factual basis to support Chapter 93A liability in the complaint. They have represented orally, however that additional facts exist that would give rise to a viable Chapter 93A claim. As such, BAC's motion is DENIED, but Plaintiffs must amend their complaint within 30 days to include this additional information.

II. FACTUAL BACKGROUND

The following alleged facts, culled from the relevant portions of Plaintiffs' complaint, are taken to be true for purposes of this motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1943, 173 L.Ed.2d 868 (2009). Russell M. Morris and Jennifer L. Morris are husband and wife. BAC Home Loan Servicing LP (“BAC”), a limited partnership doing business as Bank of America Home Loans and a subsidiary of Bank of America, N.A., is in the business of servicing and originating mortgage loans in several states, including Massachusetts. Compl. ¶ 1. Korde & Associates is a debt collector and law firm that conducts foreclosures. Id.

On January 10, 2007, the Plaintiffs refinanced their home in Gloucester, Massachusetts, securing a loan from Bank of America, N.A. in the amount of $288,000. Compl., Exhibit G. Bank of America sold the mortgage to Fannie Mae, which then employed BAC to act as the servicer of the loan.¹ As servicer, BAC is the intermediary between Fannie Mae and the Plaintiffs.

By August 2009, the Plaintiffs were in default on their mortgage loan. On or around August 24, 2009, Bank of America, N.A. filed a complaint in the Massachusetts Land Court, seeking authority to foreclose on the Plaintiffs' property. Compl., Exhibit H. In a letter to Russell Morris, dated December 18, 2009, regarding “Petition to Foreclose Mortgage,” Korde & Associates informed Mr. Morris that it would “proceed with foreclosure action until such time as the loan is brought current.” Id. In a Deficiency Notice from Korde & Associates to Jennifer Morris dated January 13, 2010, Korde & Associates informed Ms. Morris of its “intention on February 3, 2010 at 2:00 PM to foreclose by sale under power of sale for breach of conditions and by entry, [the mortgage located at 570 Essex Avenue, Gloucester, MA].” Compl., Exhibit F.

On January 26, 2010 and again on February 4, 2010, the Plaintiffs sent “a complete financial package to BAC” in application for the Home Affordable Modification Program (“HAMP”). Compl. ¶ 46. The package was sent via e-mail to the Home Retention Customer Relations Department at BAC. Id. On April 13, 2010, BAC sent the Plaintiffs a “non-HAMP modification agreement that did not comply with the HAMP guidelines.” Id. ¶ 49. The same day, counsel for the Plaintiffs sent BAC a “demand for an offer of settlement pursuant to Massachusetts Consumer Protection Act.” Id. ¶ 50; Exhibit D. In the letter, Plaintiffs' counsel asserted that BAC had failed to timely evaluate the Plaintiffs for a loan modification as required by HAMP guidelines. Specifically, the letter alleged that BAC had violated HAMP Supplemental Directive 09–07, which requires written acknowledgment of receipt of applications for loan modifications within 10 days and a substantive response within 30 days. Id. BAC did not respond to the Plaintiffs' demand letter. Id. ¶ 51.

The Plaintiffs are seeking “declaratory judgment that the BAC violated Chapter 93A by failing to evaluate the Plaintiffs for a loan modification under the [HAMP];” an “award of actual damages, costs, and attorney's fees;” and an “order that BAC immediately evaluate the Plaintiffs for HAMP.” Id. at 9.²

III. DISCUSSION

The plaintiffs' burden is to plead “sufficient matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A case has ‘facial plausibility’ when plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). Additionally, for the purposes of a motion to dismiss, exhibits attached to a complaint “are part of the allegations of the complaint.” Blackstone Realty LLC v. FDIC, 244 F.3d 193, 195 n. 1 (1st Cir.2001) (citing Fed.R.Civ.P. 10(c)). In considering the adequacy of pleadings, a court must take as true the factual allegations in the plaintiff's pleadings and must make all reasonable inferences in favor of the plaintiff. Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir.2005).

BAC has moved to dismiss on the sole ground that HAMP does not provide for a private right of action, and therefore a violation of HAMP guidelines cannot give rise to a valid claim under Chapter 93A. In support of its argument, BAC points to two cases from the Eastern District of California, in which the court dismissed claims alleging violations of HAMP and seeking relief under the California Unfair Competition Law, Cal. Bus. & Prof.Code § 17200. See Aleem v. Bank of America, No. 09–01812, 2010 WL 532330 (E.D.Cal. Feb. 9, 2010); Zendejas v. GMAC Wholesale Mortg. Corp., No. 10–00184, 2010 WL 2490975 (E.D.Cal. June 16, 2010). Both, however, are distinguishable. In Zendejas, the court dismissed because the plaintiffs pled only that the defendant servicer had not provided them with a loan modification; plaintiffs “failed to state facts to show how any of the purported conduct was unlawful, unfair, or fraudulent.” Zendejas, 2010 WL 2490975, at *6. Accordingly, there the issue was sufficiency of the pleadings, namely that the plaintiffs had not alleged anything other than that they had been denied a HAMP modification, which is not a statutory violation. In Aleem, the court dismissed on the basis that the “UCL cannot create a private right of action where none exists under the federal statute.” Aleem, 2010 WL 532330, at *3. Here, the issue is whether the absence of a private right of action under HAMP necessarily precludes recovery for BAC's actions under Chapter 93A, which is a different statutory scheme.

A. HAMP and Chapter 93A

Chapter 93A prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Mass. Gen. L. c. 93A § 2. Individuals have a private right of action under the statute. Id. at § 9. To prevail on a Chapter 93A claim, the plaintiff “must prove that a person who is engaged in trade or business committed an unfair or deceptive trade practice and that the [plaintiff] suffered a loss of money or property as a result.” Brandon Assocs., LLC v. FailSafe Air Safety Sys. Corp., 384 F.Supp.2d 442, 446 (D.Mass.2005) (citing Bowers v. Baystate Tech., Inc., 101 F.Supp.2d 53, 54–55 (D.Mass.2000)).

Violation of a statutory regime is not a necessary basis for a Chapter 93A claim, as Chapter 93A “creates new substantive rights and, in particular cases, makes conduct unlawful which was not unlawful under the common law or any prior statute.” Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 897 N.E.2d 548, 556 (2008) (internal quotation marks and citation omitted). Conversely, violation of a statute does not automatically give rise to a Chapter 93A claim. See Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 66 (1st Cir.2009) (“To prove such a claim, it is neither necessary nor sufficient that a particular act or practice violate common or statutory law.”)(citing Kattar v. Demoulas, 433 Mass. 1, 739 N.E.2d 246, 257 (2000)); see also Ording v. BAC Home Loans Servicing, LP, No. 10–10670, 2011 WL 99016, at *6 (D.Mass. Jan. 10, 2011) (Bowler, M.J.).

As such, a violation of HAMP that is deceptive or unfair could create a viable claim for relief under Chapter 93A. See Bosque v. Wells Fargo Bank, N.A., No. 10–10311, 762 F.Supp.2d 342, 353–54, 2011 WL 304725, at *7–*8 (D.Mass. Jan. 26, 2011) (denying motion to dismiss Chapter 93A claim arising out of HAMP application); cf. Speleos v. BAC Home Loans Servicing, L.P., No. 10–11503, 755 F.Supp.2d 304, 311, 2010 WL 5174510, at *6 (D.Mass. Dec. 14, 2010) (stating, with regard to HAMP, that “a claim for negligence based on a statutory or regulatory violation can survive even where there is no private cause of action under that statute or regulation.”). “Where a statute does not provide a private means of recovery, for a cause of action pursuant to chapter 93A to proceed, the violation must be determined to be unfair or deceptive in and of itself[.]” Ording, 2011 WL 99016, at *6.

The plaintiff must also show “tha...