Samuel Humphreys v. Bank of America, et al

Filing

OPINION filed : The district court's dismissal of the fraudulent inducement claim and any overlapping portion of the intentional misrepresentation claim is REVERSED. The judgment of the district court is otherwise AFFIRMED, and the case is REMANDED for further proceedings consistent with the opinion of this court. Karen Nelson Moore and Deborah L. Cook (AUTHORING), Circuit Judges; James S. Gwin, U.S. District Judge for the Northern District of Ohio, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0124n.06
No. 13-5793
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
SAMUEL R. HUMPHREYS,
Plaintiff-Appellant,
v.
BANK OF AMERICA; BAC HOME
LOANS SERVICING LC, f/k/a Countrywide
Home Loans Servicing, LP, Corp.,
Defendants-Appellees.

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Feb 11, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE

Before: MOORE and COOK, Circuit Judges; GWIN, District Judge*
COOK, Circuit Judge. In this deceptive-mortgage-refinancing case, homeowner Samuel
Humphreys sued Bank of America and BAC Home Loans Servicing, LP (collectively “the
financial institutions”), alleging violations of the Truth in Lending Act (TILA) and the Tennessee
Consumer Protection Act (TCPA), and seeking to set aside his adjustable-rate mortgage (ARM)
for fraudulent inducement and negligent and intentional misrepresentation. In separate orders,
the district court: (1) dismissed as untimely the fraud-in-the-inducement and misrepresentation
claims, as well as the portion of the TCPA claim targeting deceptive acts leading up to the loan;
and (2) granted summary judgment to the financial institutions on the remaining TILA and TCPA

*

The Honorable James Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.

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claims, finding them unsubstantiated and—for some of the TCPA arguments—forfeited as beyond
the scope of the pleadings. Humphreys appeals, renewing several of his district-court arguments.
We AFFIRM in part and REVERSE in part.
I.
We briefly recap the relevant facts thoroughly detailed in the district court’s opinions. On
May 14, 2004, Humphreys refinanced his home mortgage with Countrywide Home Loans, Inc.
(“Countrywide”) via an $800,000, 30-year Pay Option ARM (“the mortgage”). The mortgage
came with an initial monthly payment of $2,666.01, an initial interest rate of 1.25%, annual rate
changes measured by twelve-month treasury-yield averages, and a rate cap of 9.95%.
Countrywide’s representations led Humphreys to believe that he had the option of making either
interest-only payments or principal payments. Although purportedly an experienced financial
adviser, Humphreys did not realize that the interest rate would change monthly, that his minimum
payment would increase 7.5% each year, and that his loan would convert to a fully amortizing loan
after five years.

He claims that Countrywide concealed these loan terms and misled him

regarding the nature of his mortgage.
Beginning in May 2005 and each May thereafter, Humphreys received notices of increases
to his monthly payments. Substantial principal increases soon followed, as depicted in this
thoughtful chart utilized by the district court.

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Date

Minimum Monthly
Payment

Increase from May
2004 Payment

Amount of Principal

Increase from May
2004 Principal

May 2004

$2,666.01

-

$800,000.00

-

May 2005

$2,865.96

$199.95

-

-

May 2006

$3,080.91

$414.90

$801,939.29

$1,939.29

May 2007

$3,311.98

$645.97

$818,393.03

$18,393.03

May 2008

$3,560.38

$894.37

$832,823.46

$32,823.46

May 2009

$4,024.19

$1,358.18

-

-

(See R. 24, Am. Compl. ¶¶ 67, 75–82.)
In jeopardy of losing his home, Humphreys contacted the loss mitigation department of
Bank of America (BOA), which had acquired Countrywide Home Loans Servicing, LP (known by
this time as BAC Home Loans Servicing, LP) and continued to service its loans.

After

loan-modification attempts proved unsuccessful, Humphreys filed suit in state court in May 2011,
alleging fraudulent inducement, violations of TILA and the TCPA, and intentional and negligent
misrepresentation. As relevant here, the TILA claim centered on BOA’s failure to notify plaintiff
of its acquisition of his loan, in violation of Regulation Z, and the TCPA claims encompassed,
inter alia, BOA’s failure to facilitate a loan modification, contrary to the guidelines of the federal
Home Affordable Modification Program (HAMP) and Countrywide’s settlement with the State of
Tennessee. (See R. 24, Am. Compl. ¶¶ 95–101; id. ¶¶ 106–12; see generally R. 45-7, Agreed

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Final Judgment.) The financial institutions removed the matter to federal court and, as noted
above, the district court dismissed several of the claims as untimely and granted summary
judgment to the financial institutions on the TILA and TCPA claims. Humphreys timely appeals.
II.
Before reaching the merits, we take up the financial institutions’ jurisdictional argument
that Humphreys’s notice of appeal failed to preserve the claims rejected in the court’s 12(b)(6)
dismissal order. See Fed. R. App. P. 3(c)(1)(B) (requiring that the notice of appeal “designate the
judgment, order, or part thereof being appealed”). Although his notice designates only the “final
Judgment dismissing the case entered in this action on May 13, 2013,” our cases have long
recognized that a general notice of appeal from a final judgment encompasses related non-final
rulings and orders. E.g., Gipson v. Vought Aircraft Indus., 387 F. App’x 548, 553 (6th Cir. 2010);
McLaurin v. Fischer, 768 F.2d 98, 101–02 (6th Cir. 1985); see also Charles Alan Wright et al.,
16A Federal Practice & Procedure § 3949.4 (4th ed.) (“A notice of appeal that names the final
judgment suffices to support review of all earlier orders that merge in the final judgment under the
general rule that appeal from a final judgment supports review of all earlier interlocutory
orders . . . .”). Accordingly, because the general notice of appeal preserved his claims, we have
jurisdiction under 28 U.S.C. § 1291.
III.
On appeal, Humphreys challenges the statute-of-limitations dismissal of his fraudulent
inducement and misrepresentation claims and also the adverse judgment on his TILA and TCPA
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claims.1 We review these matters de novo under the standards applicable to Rule 12(b)(6) and
Rule 56 motions for dismissal and summary judgment. Bartholomew v. Blevins, 679 F.3d 497,
499 (6th Cir. 2012); Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 362 (6th Cir. 2012).
Consequently, we accept as true his well-pleaded allegations and draw reasonable inferences in his
favor, as appropriate.
A. Dismissal of Fraudulent Inducement Claim
Beginning with the fraudulent inducement claim, Humphreys contends that his claim
would be timely if the district court employed Tennessee’s seven-year statute of limitations for
adverse possession, Tenn. Code Ann. § 28-2-103(a), instead of the three-year period applicable to
“injuries to personal or real property,” id. § 28-3-105. In his view, his inducement claim seeking
rescission of the mortgage is akin to “fraudulent conveyance” actions subject to the seven-year
limit. See Orlando Residence, Ltd. v. Nashville Lodging Co. (“Orlando II”), 104 S.W.3d 848,
853 (Tenn. Ct. App. 2003); Jordan v. Marchetti, No. 01A01-9607-CH-00340, 1997 WL 629955,
at *2–3 (Tenn. Ct. App. Oct. 14, 1997). Yet, as the district court explained, § 28-2-103, titled
“Adverse possession; time; extent,” applies to actions for “the recovery of lands.”

Id.

§ 28-2-103(a). The cases upon which appellant relies acknowledge this point. See Orlando II,
104 S.W.3d at 853 (noting that the seven-year limit applies to an “action to set aside the fraudulent
conveyance” of land); Jordan, 1997 WL 629955, at *3 (same); see also Orlando Residence Ltd. v.
Nashville Lodging Co. (“Orlando I”), No. 01A-01-9606-CH-00256, 1996 WL 724915, at *3–4
1

Humphreys abandons the untimely portion of his TCPA claim, which alleges unfair acts
related to the origination of the loan.
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(Tenn. Ct. App. Dec. 18, 1996) (collecting authority demonstrating that the seven-year period
governs claims “for the recovery of real estate,” and applying that limitations period only to the
portion of plaintiff’s action “to set aside the allegedly fraudulent conveyance” of land).
Despite characterizing his claim as a fraudulent land transfer, Humphreys seeks to set aside
a loan agreement. (See R. 24, Am. Compl. ¶ 1 (“Plaintiff, Samuel R. Humphreys, brings this
action for rescission.”); id. ¶ 104 (asserting fraudulent inducement to “enter into a very toxic and
exploitative loan agreement, which caused him significant damage and . . . should be rescinded by
the Court”); id. Prayer for Relief ¶ 2 (asking “[t]hat the Court enter an order rescinding the
Promissory Note and Deed of Trust executed by the Plaintiff regarding the property in question . .
. and requiring the plaintiff to make restitution of the loan proceeds, with credit for all payments
made toward restitution of the principal indebtedness”).)

Because Humphreys’s amended

complaint cannot be read as seeking the “recovery of lands,” the seven-year period does not apply.
But the district court’s application of the three-year period set by § 28-3-105, the
property-injury provision, is not right either. In Vance v. Schulder, the Tennessee Supreme Court
held that the fraudulent-inducement plaintiff “may elect between two remedies”: (1) “treat the
contract as voidable and sue for the equitable remedy of rescission,” or (2) “treat the contract as
existing and sue for damages at law under the theory of ‘deceit.’” 547 S.W.2d 927, 931 (Tenn.
1977). The district court understandably relied on Vance’s conclusion that the property-injury

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provision applies to the second theory, id. at 931–32,2 but unlike Vance, this case arises under the
equitable approach of the first, as demonstrated by the above-quoted portions of the Amended
Complaint. Vance’s silence on that limitations period requires us to dig deeper into Tennessee
law, mindful of its instruction that the gravamen of the complaint determines the appropriate
statute of limitations. Id. at 931; see also Mid-South Indus., Inc. v. Martin Mach. & Tool, Inc.,
342 S.W.3d 19, 29 (Tenn. Ct. App. 2010) (explaining that Tennessee courts look to the “object” of
the action). “[T]he major criterion in ascertaining the gravamen of the action is the kind of
damage alleged.” Harvest Corp. v. Ernst & Whinney, 610 S.W.2d 727, 729 (Tenn. Ct. App.
1980); see also Stratienko v. Chattanooga-Hamilton Cnty. Hosp. Auth., No. 1:07–CV–258, 2009
WL 736007, at *10 (E.D. Tenn. Mar. 17, 2009).
At least one Tennessee appellate court has applied the three-year property-injury provision
to a fraudulent-inducement claim for rescission, reasoning from the state’s 19th century precedents
that “equity follows the law”—i.e., the limitations governing legal remedies also apply to
equitable remedies. Prescott v. Adams, 627 S.W.2d 134, 137 (Tenn. Ct. App. 1981).3 Prescott,
however, concerned actual, physical damages to real property, the result of a mudslide—thus, an
2

Vance, it appears, applied a predecessor to § 28-3-105: Tenn. Code Ann. § 28-305 (1977).
Like the current provision, § 28-305 prescribed a three-year limitations period for “[a]ctions for
injuries to personal or real property.” See Vance, 547 S.W.2d at 931.
3

Another appellate court recognized that the three-year limitations period governed
intentional misrepresentation claims, which the court equated to fraudulent inducement claims.
Med. Educ. Assistance Corp. v. State ex rel. E. Tenn. State Univ. Quillen Coll. of Med., 19 S.W.3d
803, 817 (Tenn. Ct. App. 1999). Yet, because the case lacked an action for rescission, the court
had no occasion to engage in Vance’s equity versus damages analysis or address alternative
statutes of limitations.
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action “for injuries to personal or real property,” as contemplated in the property-injury provision.
See Prescott, 627 S.W.2d at 135–36; see also Mid-South Indus., 342 S.W.3d at 31 (“[R]egardless
of whether a complaint sounds in contract, if the suit seeks to recover damages for injuries to the
plaintiff’s property, the applicable limitations period is three years as found in Tenn. Code Ann.
§ 28–3–105.”) (citation omitted).
Humphreys alleges that Countrywide misrepresented and concealed exploitative terms in
his adjustable-rate-mortgage, resulting in negative amortization of his loan and drastic increases in
his monthly payments. (See R. 24, Am. Compl. ¶¶ 58–85.) Though Humphreys seeks damages
for statutory and regulatory violations (and also injunctive relief to protect him from foreclosure,
see id. Prayer for Relief ¶¶ 3, 5, 7), the gravamen of his fraudulent inducement claim is the
financial loss of accepting an unfair loan, one he seeks to set aside.
Under similar circumstances—albeit, with an insurance company seeking rescission of a
policy due to a borrower’s deceit—a federal court rejected the property-injury period, opting
instead for Tennessee’s ten-year catchall statute of limitations, Tenn. Code Ann. § 28-3-110(3).4
Home Guar. Ins. Corp. v. Third Fin. Servs., Inc., 694 F. Supp. 438, 439–40 (M.D. Tenn. 1988)
(order). The court’s analysis flowed from Vance:
In this case, plaintiff has brought the action under the first prong of the
Tennessee Supreme Court’s analysis: this is solely an equitable action for
4

This statute grants a ten-year limitations period to “[a]ll other cases not expressly provided
for.” Tenn. Code Ann. § 28-3-110.
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rescission that asserts the contract was void ab initio. It is neither an action in tort
(for no injury has yet occurred) nor an action on the contract (for plaintiff asserts
the contract never came into existence). Hence, neither the three year statute on
tortious damage to property nor the six year statute for actions on the contract are
applicable.

Id. at 439. Dobson v. Marion County, an unpublished Tennessee appellate decision, lends some
support for this view, but the court hedged its statute-of-limitations decision, finding the rescission
claim time-barred under either the ten-year catchall provision, Tenn. Code Ann. § 28-3-110(3), or
the six-year period for “[a]ctions on contracts not otherwise expressly provided for,” Tenn. Code
Ann. § 28-3-109(a)(3). Dobson v. Marion Cnty., No. M2004-02154-COA-R3-CV, 2006 WL
1026422, at *4 (Tenn. Ct. App. Apr. 18, 2006) (citing Aschbacher v. Woods, No.
M2003-02616-COA-R3-CV, 2005 WL 473468 (Tenn. Ct. App. Mar. 1, 2005)); see also Eldrige v.
Savage, No. M2012–00973–COA–R3–CV, 2012 WL 6757941, at *2 (Tenn. Ct. App. Dec. 28,
2012) (acknowledging the parties’ agreement that the ten-year catchall provision applied to an
equitable claim for rescission).
The language of the relevant statutes and the decisions in Dobson and Home Guaranty
persuade us to reject the district court’s conclusion that § 28-3-105’s three-year limitations period
bars Humphreys’s claim.

Because the pleadings yield no definitive answer regarding the

timeliness of this claim under longer limitations periods, see Tenn. Code Ann. §§ 28-3-109(a)(3),
28-3-110(3), we reverse as premature the Rule 12(b)(6) dismissal of this claim. See, e.g., Lutz v.
Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (recognizing that a motion to
dismiss generally “is an ‘inappropriate vehicle’” for a statute-of-limitations defense, unless the
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pleadings “affirmatively show that the claim is time-barred”); Cataldo v. U.S. Steel Corp., 676
F.3d 542, 547 (6th Cir. 2012) (same).
B. Dismissal of Misrepresentation Claims
The parties agree, however, that the property-injury provision’s three-year period applies
to the misrepresentation claims. E.g., Ne. Knox Util. Dist. v. Stanfort Constr. Co., 206 S.W.3d
454, 459 (Tenn. Ct. App. 2006) (negligent misrepresentation); Med. Educ. Assistance Corp. v.
State ex rel. E. Tenn. State Univ. Quillen Coll. of Med., 19 S.W.3d 803, 817 (Tenn. Ct. App. 1999)
(negligent and intentional misrepresentation). Although intentional misrepresentation claims can
overlap with fraudulent inducement claims, see Med. Educ. Assistance Corp., 19 S.W.3d at 817
(“Intentional misrepresentation in Tennessee is fraud in the inducement of a contract, the old
common law action of deceit . . . .”), we agree that the property-injury provision controls
appellant’s negligent misrepresentation claim.
On appeal, Humphreys disputes only the district court’s finding that his misrepresentation
claims accrued in May 2006, noting that (i) his loan converted to a “fully amortizing loan” in 2009,
and (ii) he first learned “of the most egregious loan terms [in] the summer of 2010.” (Appellant
Br. at 30.) Using either of those dates, his claim would be timely. As with the fraudulent
inducement claim, Tennessee applies the discovery rule to misrepresentation claims—the “cause
of action accrues . . . when a plaintiff discovers, or in the exercise of reasonable care and diligence,
should have discovered, his injury and the cause thereof.” Med. Educ. Assistance Corp., 19
S.W.3d at 817; see also City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729, 735
(Tenn. Ct. App. 1996).
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The district court correctly rejected plaintiff’s later accrual date, because the Amended
Complaint reveals that he received annual notices of loan-payment increases as early as May 2005
(effective July 2005), with loan amortization occurring as early as May 2006. (See R. 24, Am.
Compl. ¶¶ 75–82.) Moreover, Humphreys admits to inquiring about the payment increases
“[w]hen [he] began to get notices of [them].” (Id. ¶ 87 (emphasis added); see also Appellant
Reply Br. at 4–5.) Accepting these allegations, which highlight two of Humphreys’s loan-related
injuries (id.¶¶ 58–59), we agree with the district court that appellant reasonably should have
known of the alleged misrepresentations in May 2006, if not sooner. His original complaint in
May 2011 thus missed the three-year filing window, see Tenn. Code Ann. § 28-3-105, and we
affirm the district court’s dismissal of this untimely claim.
To the extent that Humphreys’s intentional misrepresentation claim coincides with his
fraudulent inducement claim in seeking rescission of the loan, he may pursue that theory as part of
his fraudulent inducement claim. See Med. Educ. Assistance Corp., 19 S.W.3d at 817. Yet,
inasmuch as it presents an independent claim for damages, the claim is likewise time-barred under
§ 28-3-105.
C. Summary Judgment on TILA Regulation Z Claim
Next, Humphreys challenges the district court’s denial of his TILA claim, arguing that
BOA beneficially acquired the mortgage’s promissory note and deed of trust when it merged with
BAC Home Loans Servicing, LP (formerly a Countrywide entity5), but failed to disclose the loan

5

We note Humphreys’s apparent confusion between Countrywide Home Loans, Inc., the
original owner of his loan, and Countrywide Home Loans Servicing, LP, the entity that became
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transfer in violation of 15 U.S.C. § 1641(g)(1) and 12 C.F.R. § 226.39(a)(1). This reporting
requirement, however, applies only to “new owner[s] or assignee[s] of the debt,” 15 U.S.C.
§ 1641(g)(1), and, as the district court observed, Humphreys fails to identify any evidence
demonstrating defendants’ acquisition of the loan after the disclosure-requirement’s May 2009
effective date. See Helping Families Save Their Homes Act of 2009, Pub. L. No. 111–22 § 404,
123 Stat. 1632, 1658 (May 20, 2009) (amending TILA § 131, 15 U.S.C. § 1641); 74 Fed. Reg.
60143-01, 60143 (Nov. 20, 2009). This evidentiary default justified summary judgment. See
Fed. R. Civ. P. 56(c)(1) (obliging a party asserting or disputing a fact to “cit[e] . . . particular parts
of materials in the record” or “show[] that the materials cited do not establish the absence or
presence of a genuine dispute”); Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 405 (6th Cir.
1992) (“[I]f the non-moving party fails to discharge [the summary judgment] burden—for
example, by remaining silent—its opportunity is waived and its case wagered.”).
Eliding this omission, Humphreys challenges the admissibility of BOA’s evidence that
Countrywide transferred the loan to a third-party trust in July 2006: an affidavit by Assistant Vice
President-Mortgage Resolution Associate Jeremy N. Klos-Mayhall. (R. 40-7, Klos-Mayhall Aff.
¶ 7 (“According to [BOA’s] business records, sometime on or about July 7, 2006, the Loan was
transferred to ZUNI 2006-OA1, which is the current owner of the Loan.”).) Specifically, he
impugns Klos-Mayhall’s account as hearsay ineligible for the business-records exception under
BAC Home Loans Servicing, LP. (See Appellee Br. at 25; R. 40-3 Adjustable Rate Note.) BOA
points to this misunderstanding as further undermining plaintiff’s claim that BOA acquired his
loan, but Humphreys responds that BOA acquired both Countrywide entities. (Appellant Reply
Br. at 6–7; R. 45-7, Agreed Final Judgment at 2.) We need not resolve this factual dispute raised
for the first time on appeal.
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Federal Rule of Evidence 803(6). Though the financial institutions failed to supply the “records”
alluded to in the assistant vice president’s affidavit, and it appears they no longer have the original
transfer records, their neglect does not excuse plaintiff from showing their acquisition of the loan
after the disclosure requirements took effect in May 2009.
The motion for summary judgment, statement of material facts, Klos-Mayhall’s deposition
testimony regarding his review of BOA’s business records, and BOA’s answers to interrogatories
all informed Humphreys that BOA denied ownership of his loan during this period. (R. 40-1,
MSJ Br. at 8; R. 40-2, Statement of Material Facts ¶ 4; R. 45-4, Klos-Mayhall Dep. at 31–32; R.
45-6, Def.’s Responses to Interrogatories at 5–7.)6 Humphreys needed to come forward with
evidence disputing this claim or, at a minimum, certify his inability to present these “essential”
facts. See Fed. R. Civ. P. 56(d). He did neither, opting instead to rely on BOA’s 2011 merger
with BAC Home Loans Servicing, LP. (R. 45, Pl.’s Resp. Br. at 12.) But a merger between
BOA and a company that may have once owned his loan will not suffice, because it cannot
demonstrate BOA’s acquisition of the loan during the relevant period.

6

Although his familiarity with BOA’s records-keeping procedures may enable him to lay a
foundation for BOA’s business records as a “qualified witness” under Rule 803(6), see Dyno
Constr. Co. v. McWane, Inc., 198 F.3d 567, 575–76 (6th Cir. 1999), Mr. Klos-Mayhall’s testimony
differs in kind from the “record[s]” permitted by Rule 803(6), and offers no firsthand knowledge
of the alleged loan transfers. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge . . . .”). Still, as BOA’s Rule
30(b)(6) representative, he may “testify about information known or reasonably available to the
organization.” Fed. R. Civ. P. 30(b)(6). We are satisfied, for present purposes, that BOA’s
motion satisfied the burden of production, requiring Humphreys to present evidence of BOA’s
acquisition of his loan after May 2009.
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Finally, Humphreys contends that BOA’s interrogatory answers “admit[]” that the note
and deed “may not have been assigned to [the trust],” suggesting inconsistencies in BOA’s
position. (Appellant Br. at 17.) To the contrary, the interrogatory answer “states that the MERS
milestones [for plaintiff’s loan] indicate” numerous transfers, a penultimate transfer to BOA, and a
final transfer to “U.S. Bank, N.A. as trustee for Zuni Mortgage Loan Trust 2006-OA1,” with the
caveat that “Defendant . . . cannot verify the accuracy of this information or that there would be
any documents which would evidence such transfers.”

(R. 45-6, Def.’s Responses to

Interrogatories at 5–6 (emphasis added).) Regardless, this statement adds nothing to the relevant
factual issue: whether BOA acquired the loan after May 2009. Because appellant fails to show
that it did, we affirm the district court’s grant of summary judgment on this claim.
D. Summary Judgment on TCPA Claims
Last, Humphreys objects to the dismissal of his TCPA claims on several grounds. First,
he argues that he preserved the new TCPA allegations “under the general umbrella of servicing
violations . . . raised in [the] original and Amended Complaint.” He next contends that “servicing
violations related to [his] request for a HAMP loan modification violated the TCPA.” Third, he
presses that he “deserved fair treatment” under a settlement entered into between Countrywide and
Tennessee. None of these arguments warrants reversal.
First, we agree with the district court that the new TCPA claims—pertaining to BOA’s
alleged concealment of the loan’s owner, its failure to seek modification approval, and
misrepresentations regarding its authority to undertake a loan modification—appear nowhere in

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the pleadings. (R. 49, MSJ Op. at 22.) Absent amended pleadings and developed argument, we
adopt the portion of the district court’s judgment dismissing these claims.
We do likewise with the undeveloped HAMP theory, which the district court rejected
because plaintiff failed to identify specific HAMP violations. (Id. at 25.) Humphreys’s appellate
briefing clarifies nothing, resting on the conclusory assertion that “[t]he Defendant engaged in
numerous acts and omissions that violate the spirit, intent, and guidelines of HAMP.” (Appellant
Br. at 22.) The district court properly granted summary judgment on this barebones claim.
Finally, we affirm the district court’s denial of relief under the Countrywide settlement,
because appellant fails to show that he qualified under the terms of the settlement. As the district
court explained—and appellant does not dispute—the settlement limited modification eligibility
for Pay Option ARMs to “Delinquent Borrowers,” defined in relevant part as borrowers “subject to
an imminent reset or Recast” of their loans. (See R. 45-7, Agreed Final Judgment §§ 1.2
(“Delinquent Borrower”), 4.2(b) (modification eligibility requirements for Pay Option ARMs).)
Under the terms of Humphreys’s loan, a balance of 115% of the original principal, or $920,000,
triggered recasting to fully amortized payments. (R. 40-3, Adjustable Rate Note § 3(F).) We
agree with the district court that “there is no evidence that Plaintiff’s principal ever approached
115% of the original balance,” and thus “Plaintiff has not proven that he was entitled to loan
modification based on the imminent happening of a negative amortization trigger.” (R. 49, MSJ
Op. at 29.)7

7

Humphreys’s TCPA argument concludes with a brief objection to the district court’s
finding that he failed to show damages resulting from his increased monthly payments. In light of
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Case: 13-5793

Document: 006111960789

Filed: 02/11/2014

Page: 16

No. 13-5793
Humphreys v. Bank of Am.
IV.
For the above reasons, we REVERSE the district court’s dismissal of the fraudulent
inducement claim and any overlapping portion of the intentional misrepresentation claim,
but otherwise AFFIRM its judgment. We remand for further proceedings consistent with this
opinion.

his failure to develop this argument or respond to the district court’s thorough explanation of the
calculation of his monthly payments (see R. 49, MSJ Op. at 34–37), we deem the issue forfeited.
See Benge v. Johnson, 474 F.3d 236, 245 (6th Cir. 2007) (citation omitted) (“[I]t is a settled
appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.”)
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