Zanaty et al v. Wells Fargo Bank N.A. et al

Filing 39

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 28 MOTION to Dismiss as set out herein, GRANTING 36 MOTION to Amend/Correct and the Clerk is HEREBY DIRECTED to reinstate U.S. Bank, N.A. as an active party. Plaintiffs� 39; deadline to replead their complaint in a manner that fully complies with Rule 8, asserts only plausible and non-shotgun claims, and comports with the Court's other repleader requirements is no later than 5:00 p.m. on December 2, 2016. Signed by Judge Virginia Emerson Hopkins on 11/9/2016. (JLC)

FILED
2016 Nov-09 AM 11:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES ZANATY, and
CYNTHIA ZANATY,

)
)
)
Plaintiffs,
)
)
v.
) Case No.: 2:16-CV-0277-VEH
)
WELLS FARGO BANK, N.A., et al., )
)
Defendants.
)

MEMORANDUM OPINION AND ORDER
I.

Introduction
This case concerns an alleged mishandling of a residential mortgage and an

attempted wrongful foreclosure on Plaintiffs’ home located in Vestavia Hills,
Alabama (Doc. 4-1 at 3 ¶ 5),1 and was removed to this court on February 17, 2016,
on the basis of diversity and federal question jurisdiction. (Doc. 1 at 1-2). Plaintiffs
filed an amended complaint (Doc. 18) on April 14, 2016. This amended pleading
contains 17 separate counts. (See generally Doc. 18).
Pending before the court is Defendants’ Renewed Motion to Dismiss (Doc. 28)

1

All page references to Doc. 4-1 correspond with the court’s CM/ECF numbering system.

(the “Motion”) filed on May 11, 2016,2 which seeks a partial dismissal of Plaintiffs’
case. More specifically, the Motion pertains to Counts One through Twelve and
Fifteen through Seventeen of Plaintiffs’ amended complaint (Doc. 28 at 1) and is
supported by a separately filed brief. (Doc. 29). Plaintiffs filed their opposition (Doc.
31) to the Motion on June 8, 2016. On June 15, 2016, Defendants followed with their
reply. (Doc. 34). Accordingly, the Motion is now under submission, and, for the
reasons explained below, is GRANTED IN PART and otherwise DENIED. Further,
Plaintiffs are GRANTED leave to replead some claims, but not any of those that are
dismissed with prejudice as a result of Defendants’ Motion.
II.

Standard(s)
A.

Rule 12(b)(6)

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See FED.

2

Three Defendants brought the Motion–Wells Fargo Bank, N.A., America’s Servicing
Company, and U.S. Bank, N.A. (Doc. 28 at 1). Because of Plaintiffs’ failure to respond to a show
cause order, on September 23, 2016, the court entered an order that terminated America’s Servicing
Company and U.S. Bank, N.A. as separately named Defendants and substituted in Wells Fargo Bank,
N.A., doing business as America’s Servicing Company as the sole Defendant in the case. (Doc. 35).
Plaintiffs since have implicitly conceded that America’s Servicing Company is simply a doingbusiness-as entity for Wells Fargo Bank, N.A., but have contended in a motion that U.S. Bank, N.A.
should be reinstated as an active party in this litigation. (Doc. 36). Defendants’ recent response (Doc.
38) to the court’s show cause order (Doc. 37) on this issue agrees that U.S. Bank, N.A. should be
reinstated as a Defendant as it is the current owner of Plaintiffs’ loan. (Doc. 38 at 2 ¶ 4). Therefore,
Plaintiffs’ Motion To Alter, Amend, or Vacate (Doc. 36) is GRANTED, and the clerk is HEREBY
DIRECTED to reinstate U.S. Bank, N.A. as an active party and “Defendants” within this
memorandum opinion and order shall refer to Wells Fargo Bank, N.A., doing business as America’s
Servicing Company (“Wells Fargo/ASC”) and U.S. Bank, N.A. (“U.S. Bank”).
2

R. CIV. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting FED. R. CIV. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007);3 see also FED. R. CIV. P. 8(a) (setting forth general
pleading requirements for a complaint including providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been

3

While Plaintiffs’ opposition cites to Twombly and Iqbal, it also incorrectly references the
outdated Rule 12(b)(6) standard that applied before these abrogating decisions. (See, e.g., Doc. 31
at 3 (“A court may dismiss a complaint only if it is clear that no relief could be granted under any
set of facts that could be proved consistent with the allegations.” (citing Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984))).
3

stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).
B.

Shotgun Pleadings

“The typical shotgun complaint contains several counts, each one incorporating
4

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, L.L.C. v. Spear, Leeds & Kellogg Corp., 305
F.3d 1293, 1295 (11th Cir. 2002). Another confusing aspect of many shotgun
complaints is the practice of lumping multiple claims and/or multiple defendants
together within the same count or counts. A complaint that contains shotgun
characteristics make it “‘virtually impossible to know which allegations of fact are
intended to support which claim(s) for relief’ . . . [and] does not comply with the
standards of Rules 8(a) and 10(b).” LaCroix v. W. Dist. of Kentucky, 627 F. App’x
816, 818 (11th Cir. 2015), cert. dismissed sub nom. LaCroix v. U.S. Dist. Court for
W. Dist. of Kentucky, 136 S. Ct. 996, 194 L. Ed. 2d 2 (2016) (quoting Anderson v.
Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)).
Shotgun pleadings are strongly disfavored by the Eleventh Circuit. See, e.g.,
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 & n.54 (11th Cir. 2008)
(“The complaint is a model ‘shotgun’ pleading of the sort this court has been roundly,
repeatedly, and consistently condemning for years, long before this lawsuit was
filed.”), abrogated on other grounds by Iqbal, 556 U.S. 662, 680, 129 S. Ct. 1937,

5

1950-51, and Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974.4 In fact, if a
defendant faced with a shotgun complaint fails to move for an order requiring
repleader, the Eleventh Circuit has made it clear that the district court, “acting sua
sponte, should . . . str[ike] the plaintiff’s complaint, and the defendant[’s] answer, and
instruct[] plaintiff’s counsel to file a more definite statement.”Anderson v. Dist. Bd.
of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir. 1996).
III.

Analysis
A.

Preliminary Considerations

Before addressing the specific claims that Defendants challenge in their
4

Davis footnote 54 gives numerous examples of Eleventh Circuit anti-shotgun references
and states in full:
See, e.g., United States ex el. Atkins v. McInteer, 470 F.3d 1350, 1354 n.6
(11th Cir. 2006); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n.1 (11th
Cir. 2006); Ambrosia Coal and Constr. Co. v. Morales, 368 F.3d 1320, 1330 n.22
(11th Cir. 2004); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp.,
305 F.3d 1293, 1296 nn.9-10 (11th Cir. 2002); Byrne v. Nezhat, 261 F.3d 1075,
1128–34 (11th Cir. 2001); Magluta v. Samples, 256 F.3d 1282 (11th Cir. 2001);
BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1326-27 n.6 (11th Cir. 1998);
GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1368 (11th Cir. 1998);
Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997); Ibrahimi v. City of
Huntsville Bd. of Educ., 114 F.3d 162 passim (11th Cir. 1997); Anderson v. Dist. Bd.
of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366-67 (11th Cir. 1996); Beckwith
v. City of Daytona Beach Shores, 58 F.3d 1554, 1567 (11th Cir. 1995); Cesnik v.
Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir. 1996); Oladeinde v. City of
Birmingham, 963 F.2d 1481, 1483-84 (11th Cir. 1992); Pelletier v. Zweifel, 921 F.2d
1465, 1518 (11th Cir. 1991); T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520,
1543-44 n.14 (11th Cir. 1986) (Tjoflat, J., dissenting). This list is just a teaser—since
1985 we have explicitly condemned shotgun pleadings upward of fifty times.
Davis, 516 F.3d at 979 n.54.
6

Motion, the court addresses some preliminary issues. First, as a general matter, the
court finds that Plaintiffs’ amended complaint violates anti-shotgun as well as several
other fundamental pleading principles. See, e.g., FED. R. CIV. P. 8(a)(2) (requiring
complaint to include “a short and plain statement of the claim showing that the
pleader is entitled to relief”); FED. R. CIV. P. 8(d)(1) (“Each allegation must be
simple, concise, and direct.”).
Consequently, in repleading, Plaintiffs’ counsel must study the Davis decision
and the numerous cases cited therein and draft a much more definite and
comprehendible pleading. Plaintiffs’ claims against each Defendant must be set forth
in separately numbered counts. Further, Plaintiffs’ restated pleading must include
only plausibly stated claims and avoid lumping any causes of action together within
the same count.
Second, in deciding this Motion, Plaintiffs have objected to the court’s
consideration of “an endorsed note and an assignment” on the basis that Plaintiffs
dispute the authenticity of those specific records. (Doc. 31 at 3 n.3); cf. also
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (When
deciding a Rule 12(b)(6) motion “[a] court may consider only the complaint itself and
any documents referred to in the complaint which are central to the claims. (citing
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.
7

1997) (per curiam))). Because those objected-to documents are not pivotal to the
court’s Rule 12(b)(6) analysis, Plaintiffs’ concern about their authenticity is, at least
at this stage, TERMED as MOOT.
B.

Counts One and Two–Negligence and Wantonness

Count One asserts that Defendants negligently serviced Plaintiffs’ loan and
Count Two alleges wantonness in servicing. In any negligence action, Plaintiffs must
show the prima facie elements of duty, breach of duty, causation, and damages. See,
e.g., Sessions v. Nonnenmann, 842 So. 2d 649, 651 (Ala. 2002) (listing prima facie
elements of negligence); DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So. 2d
454, 460 (Ala. 2008) (same).
“To establish wantonness, the plaintiff must prove that the defendant, with
reckless indifference to the consequences, consciously and intentionally did some
wrongful act or omitted some known duty.” Martin v. Arnold, 643 So. 2d 564, 567
(Ala. 1994). Further, “[t]o be actionable, that act or omission must proximately cause
the injury of which the plaintiff complains.” Id. (citing Smith v. Davis, 599 So. 2d 586
(Ala. 1992)).
Citing to several cases, Defendants contend that these counts are implausible
because Alabama law does not recognize tort claims when the breach of duty is

8

premised upon a contractual agreement. (Doc. 29 at 5-6).5 In Vines v. Crescent
Transit Co., 85 So. 2d 436 (Ala. 1955), the Supreme Court of Alabama observed that:
[A] negligent failure to perform a contract express or implied . . . is but
a breach of the contract. But if in performing it, it is alleged that
defendant negligently caused personal injury or property damage to
plaintiff, the remedy is in tort, for it is not the breach of a contract
express or implied, but the breach of an implied duty to exercise due
care not to injure plaintiff or her property which is the gravamen of the
action.
Id. at 440 (emphasis by underlining added); see also Barber v. Bus. Prod. Ctr., Inc.,
677 So. 2d 223, 228 (Ala. 1996), overruled on other grounds by White Sands Grp.,
L.L.C. v. PRS II, LLC, 32 So. 3d 5 (Ala. 2009) (“However, a mere failure to perform
a contractual obligation is not a tort.”).
Relying upon the Alabama common-law principles articulated in Vines,
Barber, and other cases, the district court in Blake v. Bank of America, N.A., 845 F.
Supp. 2d 1206 (M.D. Ala. 2012), “found that Alabama law would not recognize a tort
claim for negligent or wanton mortgage servicing.” Barnett v. JP Morgan Chase
Bank, Nat. Ass’n, No. 1:12-CV-1745-VEH, 2013 WL 3242739, at *11 (N.D. Ala.
June 26, 2013); see also James v. Nationstar Mortg., LLC, 92 F. Supp. 3d 1190,
1199-1200 (S.D. Ala. 2015) (collecting federal cases holding that Alabama law does
not recognize claims for negligent or wanton mortgage servicing and rejecting such
5

All page references to Doc. 29 correspond with the court’s CM/ECF numbering system.
9

claims).
This court, persuaded by Blake, has similarly found these contract-driven
servicing claims to be implausible tort theories under Alabama law. Barnett, 2013
WL 3242739, at *11; see Vines, 85 So. 2d at 439 (“The fact that [the applicable
contract] was negligently breached does not affect the nature of the cause of action.”).
Further, since Barnett, the Alabama Supreme Court has expressly clarified that a
wanton servicing claim is not cognizable under Alabama law. See U.S. Bank Nat.
Ass’n v. Shepherd, No. 1140376, 2015 WL 7356384, at *13 (Ala. Nov. 20, 2015)
(“The James [district] court has correctly stated Alabama law as it applies to claims
alleging that lenders have acted wantonly with regard to servicing and handling
mortgages.”) (emphasis added). Finally, nothing in Plaintiffs’ opposition persuades
this court that Barnett and similar authorities were wrongly decided. Therefore, the
Motion is GRANTED as to Counts One and Two and those claims are HEREBY
DISMISSED WITH PREJUDICE.
C.

Count Three–Unjust Enrichment

Count Three asserts unjust enrichment on the basis that Plaintiffs “have been
forced to pay charges that were illegal, wrong in character, wrong in amount,
unauthorized, or otherwise improper under threat of foreclosure . . . .” (Doc. 18 at 10
¶ 39). As the Supreme Court of Alabama has explained this equitable doctrine:
10

To prevail on a claim of unjust enrichment, the plaintiff must show that
the “‘defendant holds money which, in equity and good conscience,
belongs to the plaintiff or holds money which was improperly paid to
defendant because of mistake or fraud.’” Dickinson v. Cosmos Broad.
Co., 782 So. 2d 260, 266 (Ala. 2000) (quoting Hancock–Hazlett Gen.
Constr. Co. v. Trane Co., 499 So. 2d 1385, 1387 (Ala. 1986)) (some
emphasis omitted; some emphasis added). “The doctrine of unjust
enrichment is an old equitable remedy permitting the court in equity and
good conscience to disallow one to be unjustly enriched at the expense
of another.” Battles v. Atchison, 545 So. 2d 814, 815 (Ala. Civ. App.
1989) (emphasis added).
Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1122-23 (Ala. 2003)
(emphasis by underlining added).
In moving to dismiss this equitable claim, Defendants rely primarily upon Fed.
Home Loan Mortgage Corp. v. Anchrum, No. 2:14-CV-02129-AKK, 2015 WL
2452775 (N.D. Ala. May 22, 2015). Anchrum is factually dissimilar from this case
because the mortgage foreclosure sale at issue there was not merely threatened, but
actually occurred. 2015 WL 2452775, at *2; see id., 2015 WL 2452775, at *6 (“To
the extent the Anchrums argued that Wells Fargo and/or Freddie Mac received the
full market value of their home through a wrongful foreclosure, this raises claims for
breach of contract or wrongful foreclosure, not unjust enrichment.”). Therefore, the
court disagrees with Defendants that Anchrum directly supports a dismissal of this
claim.
The court also rejects Defendants’ efforts to show that Plaintiffs’ unjust
11

enrichment claim is barred by the existence of their loan documents–i.e., the note and
mortgage. As Anchrum points out, the mere mentioning of this proposition by Pattans
Ventures. Inc. v. Williams, 959 So. 2d 115, 117 n.2 (Ala. Civ. App. 2006) in a
footnote “is arguably only dicta.” Anchrum, 2015 WL 2452775, at *5. Further
Defendants have not persuaded the court that “a claim for unjust enrichment is
necessarily predicated on an implied contract theory.” Id.
At the same time, the court agrees with Defendants that this part of Plaintiffs’
complaint is insufficiently alleged. For example, “[Plaintiffs] do not allege . . . that
they were tricked or defrauded into paying any amounts . . . .” Id. at *6 (emphasis
added). Additionally, Plaintiffs need to provide more detail about the amounts and
timing of the alleged improper fees and other charges that they claim Defendants
received from them that were not due under the note and mortgage during the
pendency of the threatened foreclosure. Cf. id. (“That they made payments they were
contractually obligated to make is hardly an unjust enrichment of Wells Fargo.”).
Importantly, if Defendants derived no actual financial benefit from Plaintiffs beyond
what was contractually due to be paid under the terms of the note and mortgage, then
no plausible claim for unjust enrichment will lie. Therefore, the Motion is
GRANTED as to Count Three with leave for Plaintiffs to replead their unjust
enrichment claim in a non-shotgun manner that also satisfies the Twiqbal standard.
12

D.

Count Four–Wrongful Foreclosure

The parties agree that no foreclosure has taken place and that Plaintiffs are still
residing in their Vestavia Hills home. The Supreme Court of Alabama has explained
that “[a] mortgagor has a wrongful foreclosure action whenever a mortgagee uses the
power of sale given under a mortgage for a purpose other than to secure the debt
owed by the mortgagor.” Reeves Cedarhurst Dev. Corp. v. First Am. Fed. Sav. &
Loan Ass’n, 607 So. 2d 180, 182 (Ala. 1992). Courts interpreting Alabama law
consistently have held that, unless a foreclosure sale actually occurs, the power of
sale has not been exercised, and a claim based only on pre-sale proceedings cannot
satisfy the Reeves standard. See, e.g., Hardy v. Jim Walter Homes, Inc., No. CIV. A.
06-0687-WS-B, 2007 WL 174391, at *1 (S.D. Ala. Jan. 18, 2007) (“[T]he clear
weight of authority from other jurisdictions is that wrongful foreclosure actions are
not recognized unless a foreclosure actually takes place.”); see also McKinley v.
Lamar Bank, 919 So. 2d 918, 930 (Miss. 2005) ( “There was no wrongful foreclosure
because there was never a foreclosure at all.”); Reese v. First Missouri Bank and
Trust Co. of Creve Coeur, 736 S.W.2d 371, 373 (Mo. 1987) (reporting that only three
of the 29 jurisdictions in the United States permitting nonjudicial foreclosure through
power of sale have found actionable a lender’s attempted foreclosure that does not
result in a sale).
13

In the absence of any Alabama authority to the contrary, the court is
persuasively guided by the reasoning in Hardy, Reeves, and McKinley, and finds that
Plaintiffs’ wrongful foreclosure count does not state a claim upon which relief can
plausibly be granted under the allegations of their case. Accordingly, the Motion is
GRANTED on wrongful foreclosure and Count Four is HEREBY DISMISSED
WITH PREJUDICE.
E.

Count Five–Slander of Title

To establish a claim for slander of title, Plaintiffs must show:
(1) Ownership of the property by plaintiff; (2) falsity of the words
published; (3) malice of defendant in publishing the false statements; (4)
publication to some person other than the owner; (5) the publication
must be in disparagement of plaintiff’s property or the title thereof; and
(6) that special damages were the proximate result of such publication
(setting them out in detail).
Merchants Nat. Bank of Mobile v. Steiner, 404 So. 2d 14, 21 (Ala. 1981). Plaintiffs
premise their slander of title claim on Defendants’ threatened foreclosure. (See Doc.
18 at 11 ¶ 46 (“Defendant, in attempting foreclosure has caused a cloud to be placed
on the title of the property of the Plaintiff.”)).
To the extent that a threatened foreclosure can support a slander of title claim
under Alabama law,6 Plaintiffs have not plausibly alleged this count. For example,

6

Defendants hint that such a claim is not cognizable, but cite to no supporting authority.
14

Plaintiffs do not claim special damages or assert facts that could conceivably support
that element. See Ebersole v. Fields, 62 So. 73, 75 (Ala. 1913) (“The nature and
essential effect of the special damage suffered, if the action is maintainable, is that the
false and malicious matter charged interrupted, or injuriously affected, some dealing
of the plaintiff with his property, or naturally, reasonably, and proximately
superinduced the necessity for his pecuniary expenditure . . . .”). Similarly, they
neither have claimed maliciousness on the part of Defendants nor alleged facts that
establish the existence of that element. Therefore, the Motion is GRANTED as to
Count Five with leave for Plaintiffs to replead their slander of title claim in a nonshotgun and Twiqbal-satisfying format.
F.

Count Six–Breach of Contract

To establish a breach of contract, Plaintiffs must show:
(1) a valid contract binding the parties; (2) the plaintiffs’ performance
under the contract; (3) the defendant’s nonperformance; and (4)
resulting damages.
Reynolds Metals Co. v. Hill, 825 So. 2d 100, 105 (Ala. 2002) (citing State Farm Fire
& Cas. Co. v. Slade, 747 So. 2d 293, 303 (Ala.1999)). Plaintiffs’ shotgun complaint
purports to bring this claim collectively against Defendants for misapplying or
misplacing mortgage payments made by Plaintiffs and failing to provide them with
proper notices of default and acceleration. (Doc. 18 at 11-12 ¶¶ 52-54). Plaintiffs
15

have not plausibly asserted this claim against Wells Fargo/ASC because they have not
alleged the existence of a valid contract with that entity. Instead, they have only
identified Wells Fargo/ASC as the mortgage servicing company.
At least one court has dismissed a breach of contract claim brought against a
mortgage servicing company under circumstances similar to Plaintiffs’ allegations
here and this court finds that authority to be persuasive. See Webb v. Ocwen Loan
Servicing, LLC, No. CIV. A. 11-00732-KD-M, 2012 WL 5906729, at *8 (S.D. Ala.
Nov. 26, 2012) (granting summary judgment on breach of contract claim brought
against loan service provider). As the court explained its reasoning in Webb:
Webb must first establish the existence of a valid contract with Ocwen.
The parties do not dispute the absence of a contract between Webb and
Ocwen. Webb relies upon a theory of agency under Alabama law based
in part on Ocwen’s alleged failure to disclose to Webb that it was acting
as Freddie Mac’s agent by servicing the mortgage. However, the
Alabama cases cited by Webb involve the circumstance where the agent
entered into a contract on behalf of an undisclosed principal. Under that
theory, Ocwen could be liable only if it had entered into the mortgage
on behalf of Freddie Mac. That did not occur. Webb also argues that
Ocwen stepped into Freddie Mac’s position upon assignment of the
mortgage. However, Webb’s mortgage was assigned to Ocwen on June
29, 2010, after the conduct creating the alleged breach had occurred.
Therefore, summary judgment is GRANTED in favor of Ocwen as to
Webb’s claim for breach of the mortgage agreement.
2012 WL 5906729, at *8 (emphasis by underlining added).
Akin to Webb, Plaintiffs seek to impose contractual liability against Wells

16

Fargo/ASC even though there is no allegation that Plaintiffs ever had a valid contract
with that Defendant. Further, Plaintiffs offer no alternative theory why Wells
Fargo/ASC could plausibly be contractually liable to them under Alabama law in the
absence of an express contract. Accordingly, the Motion is GRANTED on breach of
contract and Count Six is HEREBY DISMISSED WITH PREJUDICE to the extent
it is brought against Wells Fargo/ASC in its role as a mortgage servicing company.
To the extent that Plaintiffs are pursuing a breach of contract claim against an entity
or entities that loaned them money or have ever held their mortgage during a period
of time when an alleged breach occurred, the Motion is GRANTED as to Count Six
with leave for Plaintiffs to replead that specific breach of contract claim in a nonshotgun and Twiqbal-satisfying format.
G.

Count Seven–Fraud

Plaintiffs assert a bare-boned fraud claim against “ALL DEFENDANTS” on
the basis that “Defendant misrepresented that the loan was in default.” (Doc. 18 at 13
¶ 57). Plaintiffs’ vaguely-worded allegations of fraud are entirely lacking under FED.
R. CIV. P. 8 and, more importantly, FED. R. CIV. P. 9. See FED. R. CIV. P. 9(b) (“In
alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake.”). Accordingly, the Motion is GRANTED as to Count
Seven with leave for Plaintiffs to replead their fraud claim in a non-shotgun format
17

that simultaneously satisfies Twiqbal and the requirements of Rule 8 and Rule 9.
H.

Count Eight–False Light

Plaintiffs allege that Defendants’ oral and written negative and untrue credit
remarks about their loan unreasonably placed them in a false light. (Doc. 18 at 14 ¶¶
61, 64). Plaintiffs do not expressly allege to whom Defendants made these false-light
communications, but the implication is that these negative comments were reported
to credit agencies or bureaus.
As Defendants correctly point out, the undersigned has previously held in
Barnett that 15 U.S.C. § 1681t(b)(1)(F) of the Fair Credit Reporting Act (“FCRA”)
preempts “defamation, libel, or slander claims . . . that arises out of any false reports
made to credit agencies.” 2013 WL 3242739, at *13. Further, nothing in Plaintiffs’
opposition persuades this court that Barnett and similar authorities were wrongly
decided. Therefore, because Plaintiffs’ false light claim is akin to one for defamation,
the Motion is GRANTED as to Count Eight and Plaintiffs’ false light claim for
inaccurate reports made to credit agencies or bureaus is HEREBY DISMISSED
WITH PREJUDICE as preempted by the FCRA.
I.

Count Nine–Defamation, Libel, and Slander

For the same rationale relied upon in dismissing Count Eight, the Motion is
GRANTED as to Count Nine and Plaintiffs’ defamation, libel, and slander claim for
18

inaccurate reports made to credit agencies or bureaus is HEREBY DISMISSED
WITH PREJUDICE as preempted by the FCRA.
J.

Count Ten–Truth in Lending Act

Plaintiffs maintain that Wells Fargo/ASC violated the Truth in Lending Act
(“TILA”) by failing to provide them with certain statutorily-required notices. (Doc.
18 at 17-18 ¶ 85). Defendants assert that Plaintiffs’ TILA count is time-barred and
further that Wells Fargo/ASC cannot be liable under TILA because it never extended
any credit to Plaintiffs.
Turning to Defendants’ statute of limitations contention first, 15 U.S.C. §
1640(e) provides that:
Except as provided in the subsequent sentence, any action under this
section may be brought in any United States district court, or in any
other court of competent jurisdiction, within one year from the date of
the occurrence of the violation or, in the case of a violation involving a
private education loan (as that term is defined in section 1650(a) of this
title), 1 year from the date on which the first regular payment of
principal is due under the loan. Any action under this section with
respect to any violation of section 1639, 1639b, or 1639c of this title
may be brought in any United States district court, or in any other court
of competent jurisdiction, before the end of the 3-year period beginning
on the date of the occurrence of the violation.
15 U.S.C. § 1640(e) (emphasis added). None of the disclosure violations mentioned
by Plaintiffs in Count Ten invoke § 1639, § 1639b, or § 1639c so the alternative 3year statute of limitations period is not triggered.
19

Further, Plaintiffs’ underlying mortgage documents reflect that they closed on
their loan with AmSouth Bank on September 23, 2005. (Doc. 29-1 at 1). Therefore,
to the extent that certain TILA-mandated disclosures were not provided to Plaintiffs
at the onset of the loan, their time to sue for those violations expired on September
23, 2006, or shortly thereafter.
While equitable tolling can sometimes operate to save an otherwise stale TILA
claim under § 1640(e), see Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 708
(11th Cir. 1998) (“We therefore agree with the Third, Sixth, and Ninth Circuits that
the statute of limitations in TILA is subject to equitable tolling.”), Plaintiffs have not
mentioned equitable tolling in their complaint or their opposition to Defendants’
Motion or explained why that exception, e.g., some affirmative act of deception on
the part of Wells Fargo/ASC, should apply to their facts. Indeed, in their opposition
to the Motion, Plaintiffs do not even acknowledge that the Motion seeks to have their
TILA claim dismissed on untimeliness grounds. Therefore, Plaintiffs have, through
this significant omission, implicitly conceded that their TILA claim is, indeed, timebarred.
Alternatively, Defendants contend that Wells Fargo/ASC cannot be liable for
any disclosure violations because it does not qualify as a creditor under TILA and
therefore cannot be liable under § 1640. As defined in § 1602(g):
20

The term “creditor” refers only to a person who both (1) regularly
extends, whether in connection with loans, sales of property or services,
or otherwise, consumer credit which is payable by agreement in more
than four installments or for which the payment of a finance charge is or
may be required, and (2) is the person to whom the debt arising from the
consumer credit transaction is initially payable on the face of the
evidence of indebtedness or, if there is no such evidence of
indebtedness, by agreement.
15 U.S.C. § 1602(g).
Nowhere do Plaintiffs assert that Wells Fargo/ASC ever extended credit to
them or loaned them money. Instead, Plaintiffs affirmatively allege in their amended
complaint that AmSouth Bank was their creditor when the loan originated. (See Doc.
18 at 2-3 ¶ 5 (“[O]n September 30, 2005[,] the Zanatys refinanced their property with
AmSouth Bank and received and executed a mortgage and also signed a promissory
note with AmSouth Bank.”)). Further, Plaintiffs entirely fail to respond to this
alternative argument when opposing the Motion.
Accordingly, the Motion is GRANTED as to Count Ten and Plaintiffs’ TILA
claim asserted against Wells Fargo/ASC is HEREBY DISMISSED WITH
PREJUDICE.
K.

Count Eleven–Real Estate Settlement Procedures Act

Plaintiffs maintain that Wells Fargo/ASC violated the Real Estate Settlement
Procedures Act (“RESPA”) “by failing to acknowledge or respond to Zanaty’s

21

Qualified Written Request (QWR).” (Doc. 18 at 19 ¶ 91). Defendants acknowledge
that such a claim is cognizable under 15 U.S.C. § 2605(e).
Nonetheless, they maintain that Plaintiffs have not plausibly supported that
claim by either attaching the QWRs upon which they rely or alleging facts that satisfy
the content-based requirements of § 2605(e)(1)(B). See Patrick v. CitiFinancial
Corp., LLC, No. 3:15CV296-WHA, 2015 WL 3988860, at *3 (M.D. Ala. June 30,
2015) (“Courts have concluded that if plaintiffs do not attach a QWR to the
complaint, they should plead facts which show that their written request included the
information required by 12 U.S.C. § 2605(e)(1)(B).” (citing Tallent v. BAC Home
Loans, No. 12CV3719, 2013 WL 2249107, at *3 (N.D. Ala. May 21, 2013))). This
court is persuaded by Patrick, Tallent, and other cases which require a plaintiff to
substantiate the validity of a QWR’s contents as part of his complaint.
Defendants also attack Plaintiffs’ RESPA claim for inadequately pleading
damages. Concerning damages and costs, RESPA provides that individuals may
recover:
(A) any actual damages to the borrower as a result of the failure; and
(B) any additional damages, as the court may allow, in the case of a
pattern or practice of noncompliance with the requirements of this
section, in an amount not to exceed $2,000.
12 U.S.C. § 2605(f)(1).
22

Plaintiffs’ allegations of damages attributable to RESPA are cast in generalized
terms and do not assert any actual damages that were caused by the alleged QWR
violations. (See Doc. 18 at 19 ¶ 92 (“Because of said violations of said acts, the
Zanatys were damaged because they were not informed of the information regarding
their loan.”)).
Therefore, the court agrees with Defendants that Plaintiffs’ RESPA claim for
QWR violations is pleaded inadequately. Accordingly, the Motion is GRANTED as
to Count Eleven with leave for Plaintiffs to replead their RESPA claim, including
their allegation of damages, in a non-shotgun and Twiqbal-satisfying format.
L.

Count Twelve–FCRA

Plaintiffs’ Count Twelve appears to assert two different types of potential
FCRA violations against Wells Fargo/ASC–one for making inaccurate reports to
credit reporting agencies (15 U.S.C. § 1681s-2(a)) and the other for failing to
investigate and promptly respond to Plaintiffs’ notices of dispute (15 U.S.C. § 1681s2(b)). At the same time, Plaintiffs’ complaint contains no references to the specific
provision(s) of the FCRA under which they are pursuing relief.
An unpublished panel of the Eleventh Circuit has held that “[t]he FCRA . . .
does not provide a private right of action to redress . . . a violation [of § 1681s–2(a)],”
because “[e]nforcement of this provision is limited to federal agencies, federal
23

officials, and state officials.” Green v. RBS Nat. Bank, 288 F. App’x 641, 642 & n.2
(11th Cir. 2008). Plaintiffs do not dispute the validity of the § 1681s–2(a) holding in
Green.
Accordingly, the Motion is GRANTED as to Count Twelve and any FCRA
claim premised upon 15 U.S.C. § 1681s-2(a) is HEREBY DISMISSED WITH
PREJUDICE. Further, Plaintiffs are given leave to replead their FCRA claim in a
non-shotgun and Twiqbal-satisfying format, including a specific reference to which
statutory provision(s) (other than § 1681s-2(a)) that Plaintiffs maintain Wells
Fargo/ASC has violated.
M.

Count Fifteen–Equal Credit Opportunity Act

Count Fifteen asserts a claim arising under the Equal Credit Opportunity Act
(“ECOA”) against Wells Fargo/ASC. Section 1691(a)(1) of the ECOA makes it
“unlawful for any creditor to discriminate against any applicant, with respect to any
aspect of a credit transaction–(1) on the basis of race, color, religion, national origin,
sex or marital status, or age . . . [.]” 15 U.S.C. § 1691(a)(1). Relying upon the 12(b)(6)
district court reversal in Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204 (9th Cir.
2013), Plaintiffs more specifically maintain that Wells Fargo/ASC violated §
1691(d)(2) because Plaintiffs suffered an “adverse action” concerning the termination
of their loan modification agreement (Doc. 18 at 27 ¶ 122), but were never provided
24

“a statement of reasons for such action . . . .” 15 U.S.C. Section 1691(d)(2). As
Plaintiffs point out, several courts have held that the statement of reasons provision
can be violated even in the absence of a substantive discrimination claim. See, e.g.,
Costa v. Mauro Chevrolet, Inc., 390 F. Supp. 2d 720, 728 (N.D. Ill. 2005) (“Without
regard to allegations of discrimination, a creditor’s failure to provide a written
rejection notice is actionable under the ECOA.”); see id. at 728-29 (collection of
cases cited therein that stand for same general proposition).
In their Motion, Defendants acknowledge Schlegel, but maintain that Plaintiffs’
case is more comparable to Gomez v. Bayview Loan Servicing, LLC, No.
3:14-CV-04004-CRB, 2015 WL 433669 (N.D. Cal. Feb. 2, 2015), because Plaintiffs
were in default when the acceleration letter was sent to them and, therefore, no
cognizable adverse action within the scope of the ECOA occurred. See 15 U.S.C. §
1691(d)(6) (clarifying that “[s]uch term[, i.e., adverse action,] does not include a
refusal to extend additional credit under an existing credit arrangement where the
applicant is delinquent or otherwise in default, or where such additional credit would
exceed a previously established credit limit”). Defendants also note several other
cases that generally observe the same § 1691(d)(6) proposition, but do not discuss any
facts of those decisions. (Doc. 29 at 26 n.14).
Further, in advancing their argument, Defendants fail to acknowledge that the
25

Gomez court dismissed the ECOA claim before it because the plaintiff did not make
any debt-modification allegations and, therefore, “ha[d] not sufficiently alleged that
he [wa]s an ‘applicant’ within the plain meaning of the ECOA and c[ould not] invoke
the protections of the Act.” 2015 WL 433669, at *4. Here, Plaintiffs have expressly
tied their ECOA claim to the revocation of a purported loan modification agreement.
(Doc. 18 at 27 ¶ 122). This means that Plaintiffs’ case is not closer to Gomez, as
Defendants contend.
Having considered both sides’ positions and in the absence of any on-point
controlling authority, the court concludes that the viability vel non of Plaintiffs’
ECOA claim is better dealt with on a more developed record that establishes a
timeline of key events regarding the status of Plaintiffs’ residential loan and any
application to restructure that debt as well as clarifies the extent to which any aspect
of that timeline is materially disputed. Accordingly, the Motion is DENIED with
respect to Count Fifteen.
N.

Count Sixteen–Breach of Good Faith and Fair Dealing

Count Sixteen of Plaintiffs’ amended complaint seeks to impose liability
against all Defendants for violating an implied duty of good faith and fair dealing
concerning the handling of their mortgage and their application for a loan
modification. (Doc. 18 at 29 ¶¶ 127, 128). Defendants contend that this type of claim
26

is not cognizable outside of the insurance context. (Doc. 29 at 27).
In Lake Martin/Alabama Power Licensee Ass’n, Inc. v. Alabama Power Co.,
601 So. 2d 942 (Ala. 1992), the Supreme Court of Alabama explained:
This Court has explicitly held that there is no good faith contractual
cause of action, Tanner v. Church's Fried Chicken, supra; Government
Street Lumber Co. v. AmSouth Bank, supra; that means that bad faith is
not actionable absent an identifiable breach in the performance of
specific terms of the contract. There is no identifiable breach in the
performance of the specific terms of the license agreement by Alabama
Power; and there is no contractual cause of action for breach of an
implied duty of good faith that nebulously hovers over the contracting
parties, free from the specific terms of the contract.
Lake Martin, 601 So. 2d at 945 (emphasis added); accord Kennedy Elec. Co., Inc. v.
Moore-Handley, Inc., 437 So. 2d 76, 81 (Ala. 1983) (“The plaintiff argues that this
court should extend to the area of general contract law the tort of bad faith that has
already been recognized in the context of insurance policy cases.” (citing Prudential
Insurance Co. of Am. v. Coleman, 428 So. 2d 593 (Ala.1983))); Kennedy, 437 So. 2d
at 81 (“Although every contract does imply good faith and fair dealing (see § 7-1-203,
Code 1975), it does not carry with it the duty imposed by law which we have found
in the context of insurance cases.”) (emphasis added); Kennedy, 437 So. 2d at 81
(“We are not prepared to extend the tort of bad faith beyond the area of insurance
policy cases at this time.” (citing Brown-Marx Associates, Ltd. v. Emigrant Savings
Bank, 527 F. Supp. 277 (N.D. Ala. 1981))).
27

Moreover, Plaintiffs have not provided any countervailing controlling Alabama
authority that confirms their ability to assert a claim for implied breach of good faith
and fair dealing in the context of lender liability under Alabama law. Therefore,
Defendant’s Motion is GRANTED as to Count Sixteen and Plaintiffs’ good faith and
fair dealing claim is HEREBY DISMISSED WITH PREJUDICE.
O.

Count Seventeen–Declaratory Relief

The last count of Plaintiffs’ amended complaint asserts a claim for declaratory
relief in the form of an order that would preclude Defendants from foreclosing on
their home. (Doc. 18 at 30 ¶ 131). Defendants contend in their Motion that this
equitable count should be dismissed because of Plaintiffs’ “failure to do
equity”–come to the court with clean hands by curing their defaulted status under
their residential loan. (Doc. 29 at 28). While Defendants cite to three cases that
generally support this commonly understood equitable principle, they do not delve
into any comparison of Plaintiffs’ case with the allegations or procedural postures of
those decisions. Further, this court is not inclined to dismiss this declarative count on
such an underdeveloped record. Cf. McCulley v. Countrywide Homes Loans, Inc., No.
CIV. A. 12-0359-CG-C, 2013 WL 3187995, at *1 (S.D. Ala. June 21, 2013) (cited by
Defendants) (claim for declaratory relief dismissed on a summary judgment record).
Therefore, Defendants’ Motion is DENIED with respect to Count Seventeen.
28

IV.

Conclusion
Accordingly, for the reasons explained above, the Motion is GRANTED IN

PART and otherwise is DENIED. Further, Counts One, Two, Three, Four, Six (as
brought against Wells Fargo/ASC in its capacity as a mortgage servicing entity),
Eight, Nine, Ten, Twelve (to the extent premised upon 15 U.S.C. § 1681s-2(a)), and
Sixteen are HEREBY DISMISSED WITH PREJUDICE and are no longer a part
of this action. Plaintiffs’ deadline to replead their complaint in a manner that fully
complies with Rule 8, asserts only plausible and non-shotgun claims, and comports
with the court’s other repleader requirements is no later than 5:00 p.m. on
December 2, 2016. Finally, consistent with footnote 2 above, Doc. 36 is GRANTED
and the clerk is HEREBY DIRECTED to reinstate U.S. Bank, N.A. as a Defendant.
DONE and ORDERED this the 9th day of November, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

29