Mathis et al v. Nationstar Mortgage, LLC, et al

Filing 40

ORDER denying 20 Motion for Judgment on the Pleadings. Signed by Chief Judge William H. Steele on 12/11/2012. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BILLY EUGENE MATHIS, JR., et al.,
Plaintiffs,
v.
NATIONSTAR MORTGAGE, LTD.,
et al.,
Defendants.

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) CIVIL ACTION 12-0386-WS-N
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ORDER
This matter is before the Court on the defendants’ motion for judgment on the
pleadings. (Doc. 20). The parties have filed briefs in support of their respective
positions, (Docs. 21, 26, 31), and the motion is ripe for resolution. After careful
consideration, the Court concludes that the motion is due to be denied.
BACKGROUND
According to the amended complaint, (Doc. 18), the plaintiffs executed a
mortgage covering their primary residence. Defendant Federal National Mortgage
Association (“Fannie Mae”) later acquired ownership of the loan. Servicing of the loan
was at some point transferred to defendant Nationstar Mortgage, LLC (“Nationstar”).
The plaintiffs applied for a loan modification under the Home Affordable Modification
Program (“HAMP”), dealing with Nationstar after it became the servicer. HAMP is a
product of the Emergency Economic Stabilization Act of 2008 (“EESA”).
According to the amended complaint, Nationstar instructed the plaintiffs to stop
making mortgage payments while it evaluated the loan modification request, and the
plaintiffs did so. Nationstar later told the plaintiffs they had been approved for a Trial
Period Plan (“TPP”), under which they would make lower monthly payments on a trial

basis. The plaintiffs successfully completed the trial period, and Nationstar sent a
permanent modification agreement, which the plaintiffs signed and returned to
Nationstar. The plaintiffs then continued making the lowered monthly payments in
accordance with the modification. Eventually, Nationstar advised the plaintiffs they had
not accepted the offer or had withdrawn their request, though neither was true.
Nationstar then notified the plaintiffs they were in default and that the loan was
$11,057.97 in arrears. The loan was not in default, and the figure provided by Nationstar
did not give the plaintiffs credit for the lowered payments they had been making for
several months. The plaintiffs learned that Nationstar was holding these funds in a
suspense account, but Nationstar refused either to refund these monies or apply them to
the claimed deficiency. During this period, Nationstar failed to pay the homeowner’s
insurance premium out of escrow funds it held, resulting in cancelation of the policy.
Nationstar received assignment of the deed of trust, which transferred the mortgage to
Nationstar. Nationstar did not acquire ownership of the debt, but Nationstar through its
counsel falsely represented to the contrary. Nationstar published foreclosure notices
containing various falsehoods, and it then conducted a foreclosure sale, at which Fannie
Mae bought the property. Prior to foreclosure, Nationstar did not provide the plaintiffs
the notices and rights to cure granted them by the mortgage, in that the notices contained
material misrepresentations. After foreclosure, the plaintiffs vacated the premises, in
reliance on instructions from Fannie Mae and representations from Nationstar that a valid
foreclosure sale had occurred.
The amended complaint includes seven claims, each asserted against both
defendants:
• Count One

Breach of mortgage agreement

• Count Two

Breach of TPP agreement

• Count Three

Negligence

• Count Four

Wantonness

• Count Five

Wrongful foreclosure

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• Count Six

Fraud

• Count Seven

Defamation

The defendants present the following arguments: (1) the plaintiffs did not satisfy a
condition precedent to suit; (2) there is no private cause of action for failure to modify a
loan under HAMP; and (3) there is no enforceable contract to modify the plaintiffs’ loan.
The plaintiffs dispute each of these arguments but also assert that the defendants waived
their right to challenge the amended complaint through the vehicle of Rule 12(c).
DISCUSSION
“Judgment on the pleadings is proper when no issues of material fact exist, and
the moving party is entitled to judgment as a matter of law based on the substance of the
pleadings and any judicially noticed facts.” Cunningham v. District Attorney’s Office,
592 F.3d 1237, 1255 (11th Cir. 2010) (internal quotes omitted). “We accept all the facts
in the complaint as true and view them in the light most favorable to the nonmoving
party.” Id. The Court “need not accept as true, however, conclusory legal allegations
made in the complaint.” Andrx Pharmaceuticals, Inc. v. Elan Corp., 421 F.3d 1227,
1230 n.1 (11th Cir. 2005).
I. Timeliness of the Motion.
“After the pleadings are closed – but early enough not to delay trial – a party may
move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The defendants’ motion
clearly is not untimely under this standard, since trial is set for November 2013. (Doc.
37). The plaintiffs, however, point out that the defendants previously filed a motion
under Rule 12(b)(6) to dismiss Counts Eight and Nine of the original complaint, and they
object that the defendants should have challenged Counts One through Seven at the same
time. (Doc. 26 at 7-10).
The plaintiffs believe their position is supported by Rule 12, but it is not. Rule
12(g)(2) generally requires that “a party that makes a motion under this rule [i.e., Rule
12] must not make another motion under this rule raising a defense or objection that was
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available to the party but omitted from its earlier motion.” But, by its terms, Rule
12(g)(2)’s general prohibition on consecutive Rule 12 motions applies “[e]xcept as
provided in Rule 12(h)(2) or (3).” Rule 12(h)(2)(B) provides that “[f]ailure to state a
claim upon which relief can be granted … may be raised … by a motion under Rule 12(c)
.…” The instant motion is based on the plaintiffs’ asserted failure to state a claim and so
is captured by this provision. The only Eleventh Circuit opinion cited by the plaintiffs
acknowledges that a Rule 12(c) motion based on failure to state a claim is “not subject to
the consolidation requirements of Rule 12(g).” Skrtich v. Thornton, 280 F.3d 1295, 1307
n.13 (11th Cir. 2002).1
The plaintiffs argue that, under Skrtich, a Rule 12(c) motion may be deemed
untimely “‘if a defendant fails to assert the defense within time limits set by the court or
if the court otherwise finds that a defendant has failed to exercise due diligence or has
asserted the defense for dilatory purposes.’” 280 F.3d at 1307 n.13 (quoting English v.
Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994)). But it would be impossible for the Court to
make such a finding here. The instant motion was filed 43 days after the defendants filed
their timely motion to dismiss, 15 days after the plaintiffs moved to moot the motion to
dismiss by filing an amended complaint deleting Counts Eight and Nine, two minutes
after the defendants filed their timely answer to the amended complaint,2 and two months
before any scheduling order was entered. The motion could not have been more
punctual.
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See also Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) (“Rule 12(g)(2) does not
prohibit a new Rule 12(b)(6) argument from being raised in a successive motion[, because] Rule
12(h)(2) specifically excepts failure-to-state-a-claim defenses from the Rule 12(g) consolidation
requirement.”); Marrero-Gutierrez v. Molina, 491 F.3d 1, 6-7 (1st Cir. 2007) (it was proper under
Rules 12(g) and 12(h)(2) for the trial court to “allo[w] a narrow motion to dismiss and then
subsequently allo[w] a broader motion for judgment on the pleadings”). The plaintiffs cite a
number of cases for the proposition that consecutive Rule 12 motions are prohibited, but none of
them involves a second motion based on failure to state a claim.
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A Rule 12(c) motion cannot be filed until “[a]fter the pleadings are closed,” that is,
until after the defendant files an answer. Sampson v. Washington Mutual Bank, 453 Fed. Appx.
863, 865 n.2 (11th Cir. 2011); accord Healthcare Association, Inc. v. Pataki, 471 F.3d 87, 94 (2nd
Cir. 2006); Doe v. United States, 419 F.3d 1058, 1061-62 (9th Cir. 2005); F.R.C. International,
Inc. v. United States, 278 F.3d 641, 642 (6th Cir. 2002).
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In summary, the defendants have not waived their ability to present their
challenges through the vehicle of Rule 12(c).
II. Condition Precedent.
The mortgage provides in pertinent part as follows:
Neither Borrower nor Lender may commence, join, or be
joined to any judicial action (as either an individual litigant or the
member [sic] of a class) that arises from the other party’s actions
pursuant to this Security Instrument or that alleges that the other
party has breached any provision of, or any duty owed by reason
of, this Security Instrument, until such Borrower or Lender has
notified the other party (with such notice given in compliance with
the requirements of Section 15) of such alleged breach and afforded
the other party hereto a reasonable period after the giving of such
notice to take corrective action.
(Doc. 21, Exhibit B, § 20). Section 15 provides that “[a]ll notices given by Borrower or
Lender in connection with this Security Instrument must be in writing.” (Id., § 15).3
The defendants describe this written notice requirement as a condition precedent
to suit, and the plaintiffs do not disagree with this characterization. The defendants point
out that the amended complaint does not allege that the plaintiffs gave written notice
under Section 20, or a reasonable time to take corrective action, before commencing suit.
(Doc. 21 at 6). The plaintiffs were not required to do so, because, “[i]n pleading
conditions precedent, it suffices to allege generally that all conditions precedent have
occurred or been performed.” Fed. R. Civ. P. 9(c). But the amended complaint does not
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The mortgage is not appended to the amended complaint. Under Rule 12(d), if the
Court considers matters outside the pleadings on a Rule 12(b)(6) or Rule 12(c) motion, the
motion must be converted to one for summary judgment. But there is an exception for a
document submitted by the defendant “if the attached document is: (1) central to the plaintiff’s
claim; and (2) undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).
“‘Undisputed’ in this context means that the authenticity of the document is not challenged.” Id.
This exception applies to Rule 12(c) motions as much as to Rule 12(b)(6) motions. Id. The
mortgage satisfies these requirements.

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allege satisfaction of conditions precedent even generally, so the Court proceeds to
examine the parties’ positions.
The plaintiffs argue that Section 20 does not require notice prior to foreclosure,
only prior to suit. Before suit was filed, however, the defendants foreclosed. Under
Alabama law,4 a foreclosure sale extinguishes the mortgage. Once the mortgage was
extinguished, they conclude, the notice requirement was extinguished as well, so that
they did not have to give notice prior to filing suit. (Doc. 26 at 18-19).
The defendants first note the plaintiffs’ failure to cite any authority accepting their
position. (Doc. 31 at 2). True, but the matter is before the Court on the defendants’ Rule
12(c) motion, so the burden is on them to show that the notice provision applies despite
foreclosure. Calling the plaintiffs’ position “nonsensical,” (id.), does not carry that
burden. Nor does citing an unpublished trial court decision, (id.), which did not involve
Alabama law and which did not address the issue presented herein.
The defendants next assert that the notice provision requires notice, not simply
prior to suit, but prior to foreclosure. (Doc. 31 at 2). The only conduct that Section 20
expressly prohibits without prior written notice, however, is the filing of suit, not
acquiescence in foreclosure. Whatever textual arguments might exist for construing
Section 20 as broadly as the defendants desire, they have not articulated them, and the
Court will not do so on their behalf. Simply positing, as do the defendants, that “the very
purpose of the notice provision is to allow the lender an opportunity to remedy any
potential breaches of the mortgage before a foreclosure sale,” (id.), is no substitute for
analysis and authority, neither of which the defendants offer.
Finally, the defendants argue that the plaintiffs cannot sue for breach of mortgage
and simultaneously claim that the notice provision contained in the mortgage has been
extinguished, on the grounds that “Alabama law prohibits a person from picking and
choosing those provisions in a contract that he wants to apply ….” Ex parte Southern
United Fire Insurance Co., 843 So. 2d 151, 156 (Ala. 2002). But the plaintiffs’ argument
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The mortgage identifies Alabama as supplying governing law. (Doc. 21, Exhibit B, §

16).
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is not that they can enforce those provisions of the mortgage which they like and ignore
others just because they don’t like them; their argument is that the notice provision does
not apply due to the foreclosure.
While relying on “pick and choose” cases, the defendants’ real beef appears to be
that it is inconsistent for the plaintiffs to maintain that the extinguishment of the mortgage
by foreclosure extinguished the plaintiffs’ notice obligation but did not extinguish the
plaintiffs’ ability to sue for breach of the mortgage. There is no inconsistency, according
to the plaintiffs, because the defendants’ violations of their obligations occurred before
foreclosure – when the mortgage and its obligations still existed – while a violation of the
notice provision could not occur until suit was filed – by which time mortgage and its the
notice obligation no longer existed. (Doc. 26 at 19 n.4). The defendants do not
effectively counter this argument.
In summary, on the limited argument and authority presented, the defendants are
not entitled to judgment on the pleadings, in whole or in part, based on failure to satisfy a
condition precedent to suit.
III. Private Cause of Action.
In Miller v. Chase Home Finance, LLC, 677 F.3d 1113 (11th Cir. 2012), the
Eleventh Circuit ruled that “[n]either HAMP nor EESA expressly creates a private right
of action for borrowers against loan servicers.” Id. at 1116. The Court then “addressed
… whether there is an implied private right of action under HAMP.” Id. After engaging
in the standard analysis of such issues, the Court “conclude[d] that no such right exists.”
Id. The parties agree that Miller precludes a federal cause of action under HAMP. The
question is whether, and to what extent, the plaintiffs’ state law claims are also precluded.
“Our Constitution provides Congress with the power to preempt state law ….”
Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1262
(11th Cir. 2012). The defendants, however, expressly disavow any argument that HAMP
or EESA preempts the plaintiffs’ state law claims. (Doc. 31 at 9). Because the
defendants reject any preemption argument, and because they do not conduct the heavy
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lifting that preemption analysis requires, they cannot obtain judgment on the pleadings
based on preemption.
The defendant’s argument is that, “[i]f the plaintiff’s claims are substantially
dependent upon HAMP and its procedures, dismissal is appropriate.” (Doc. 31 at 9).
The only appellate court known to have expressly evaluated the “not sufficiently
independent” argument has soundly rejected it. The trial court in Wigod v. Wells Fargo
Bank, 2011 WL 250501 (N.D. Ill. 2011), ruled that “‘the facts and allegations as pleaded
in this case are premised chiefly on the terms and procedures set forth via HAMP and are
not sufficiently independent to state a separate state law cause of action for breach of
contract.’” Id. at *4 (quoting Vida v. One West Bank, 2010 WL 5148473 at *5 (D. Or.
2010)). On appeal, the Seventh Circuit characterized “[t]his ‘end-run’ theory” as “built
on the novel assumption that where Congress does not create a private right of action for
violation of a federal law, no right of action may exist under state law, either.” Wigod v.
Wells Fargo Bank, 673 F.3d 547, 581 (7th Cir. 2012). But, the Wigod Court countered, “a
state-law claim’s incorporation of federal law has never been regarded as disabling,
whether the federal law has a private right of action or not.” Id. at 582. It thus concluded
that “[t]he absence of a private right of action from a federal statute provides no reason to
dismiss a claim under a state law just because it refers to or incorporates some element of
the federal law.” Id. at 581; see also Cox v. Mortgage Electronic Registration Systems,
Inc., 685 F.3d 663, 675 n.4 (8th Cir. 2012) (suggesting the trial court’s assessment of
HAMP preemption “may be questionable” but resolving the appeal on other grounds).
Notably, the Wigod Court determined that, “in the absence of any other doctrinal
foundation for it [the end-run theory], we see no other way to classify it” than “as a
preemption argument.” 673 F.3d at 582. This is the standard conception in the Eleventh
Circuit as well. See, e.g., Tectonics, Inc. v. Castle Construction Co., 753 F.2d 957, 959
(11th Cir. 1985) (describing the issue as whether, “[i]f Alabama law provides a cause of
action and Congress did not provide a private cause of action pursuant to the statute, does
the federal law preempt the state law …?”). As noted, however, the defendants eschew a
preemption theory, so they are left with no theory at all.
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The defendants focus on various trial court decisions and make only passing
reference to Miller. (Doc. 21 at 14). Because Miller is a decision of the Eleventh Circuit,
the Court pays it special attention despite the defendants’ failure to do so.
The plaintiff in Miller sued when the defendant declined to issue a permanent loan
modification under HAMP, raising claims for breach of contract, breach of the implied
covenant of good faith and fair dealing, and promissory estoppel. Id. at 1115. After
concluding that there is no implied right of action under HAMP or its underlying statute,
the Eleventh Circuit continued that “Miller therefore lacks standing to pursue his breach
of contract, breach of implied duty of good faith and fair dealing, and promissory
estoppel claims insofar as they are premised on an alleged breach of Chase’s HAMP
obligations.” Id. at 1116-17. Such claims could proceed, however, to the extent
“independent from Chase’s obligations under HAMP.” Id. at 1117. The Miller Court did
not address Wigod or set forth the reasons underlying its ruling.
The plaintiffs suggest this portion of Miller is dicta, but that appears debatable. It
is clear, however, that Miller does not extend to the fact pattern alleged in the amended
complaint. Miller applies when the defendant declines to modify the loan and the
plaintiff alleges that the failure to modify violates the defendant’s obligations under
HAMP. Those obligations, according to Miller, are “to abide by guidelines promulgated
by the Secretary when determining a mortgagor’s eligibility for a permanent loan
modification.” 677 F.3d at 1116. Here, the plaintiffs do not complain of a failure to
modify the loan or of a breach of obligations in considering whether to modify a loan.
Instead, they allege that a loan modification agreement was in fact entered but that the
defendants have not honored their agreement with the plaintiffs. Miller does not reach
such a situation.5
In summary, the defendants advance no argument that the plaintiffs’ state law
causes of action are preempted by federal law; they have articulated no other principle
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Nor, it appears, do most of the district court opinions on which the defendants rely. For
that matter, neither does the defendants’ argument, which, by its terms, is limited to claims “for
an alleged failure to modify a loan under HAMP.” (Doc. 21 at 9; Doc. 31 at 9 (emphasis
added)).
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that could justify such a result; and the plaintiffs’ allegations are meaningfully different
from those in Miller.6 On the limited argument and authority presented, the defendants
are not entitled to judgment on the pleadings, in whole or in part.
IV. Contract to Modify.
The amended complaint alleges that the plaintiffs accepted the offer of a
permanent loan modification agreement by signing the agreement and sending it to
Nationstar. (Doc. 18, ¶ 17). The defendants argue that the loan modification agreement
required the plaintiffs to return it to Nationstar by June 1, 2011, (Doc. 21 at 16-17), and
they note that the amended complaint alleges Nationstar received the executed agreement
on June 7, 2011. (Doc. 18, ¶¶ 17, 22). They further argue that the agreement provided
that the loan would not be modified unless and until the lender signed it, and they deny
they ever did so. (Doc. 21 at 16-17). The defendants argue that these two circumstances
prevented a contract from being formed.
To support their argument, the defendants submit what they identify as the loan
modification agreement. (Doc. 21, Exhibit A). That document contains the provisions
described above, and it does not contain the signature of Nationstar’s representative.
However, as discussed in Part II, the Court cannot consider documents beyond the
pleadings without converting the motion to one for summary judgment, except for
documents that are both central to the plaintiffs’ claim and the authenticity of which the
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The defendants, seeking a home run, call on the Court to dismiss the amended
complaint in its entirety, without addressing specific individual allegations that might (or might
not) be susceptible to dismissal under Miller. The defendants cannot, by the simple expedient of
making a generalized argument, shift to the Court the burden of applying that argument
allegation by allegation to find where, if anywhere, it might succeed.
The Court does note, however, that many allegations patently could not be captured by
the defendants’ proposed rule. For example, Miller makes clear that claims arising “under [the
plaintiff’s] original loan agreement” are not precluded, 677 F.3d at 1117, and the amended
complaint alleges that the defendants failed to apply payments as required by the mortgage,
failed to provide opportunity to cure as required by the mortgage, breached the covenant of good
faith and fair dealing under the mortgage, and failed to pay insurance premiums as required by
the mortgage. (Doc. 18, ¶ 40). This listing is not exhaustive.
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plaintiffs do not challenge. See note 3, supra. The plaintiffs do challenge the
authenticity of Exhibit A, and with good reason. The actual loan modification agreement
was signed by the plaintiffs and returned to Nationstar, (Doc. 18, ¶ 17), but Exhibit A is
not signed by the plaintiffs.
Because the plaintiffs challenge the authenticity of Exhibit A, the Court cannot
consider it without converting the motion to one for summary judgment. Neither side has
requested the Court to convert the motion, and the Court declines to do so. Accordingly,
Exhibit A will not be considered in resolving the instant motion. Without Exhibit A, the
defendants’ argument collapses.
In summary, the defendants are not entitled to judgment on the pleadings for want
of an enforceable loan modification agreement.
CONCLUSION
For the reasons set forth above, the defendants’ motion for judgment on the
pleadings is denied.
DONE and ORDERED this 11th day of December, 2012.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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