Wallace v. SunTrust Mortgage, Inc. et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION as the opinion of this Court; and GRANTING in part and DENYING in part Defendants' 10 MOTION to Dismiss as set out in order. Signed by Judge Callie V. S. Granade on 9/26/2013. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARGARET R. WALLACE,
Plaintiff,
v.
SUNTRUST MORTGAGE, INC.,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CIVIL NO. 12-587-CG-B

ORDER
On August 16, 2013, Magistrate Judge Bivins submitted a report and
recommendation (Doc. 24) on Defendants’ motion to dismiss (Doc. 10). Judge
Bivins recommended that the court dismiss all Plaintiff’s claims except her
claim for breach of contract. Plaintiff did not object, but Defendants did. The
matter comes before the court on Defendants’ objection to Judge Bivins’s
recommendation on the contract claim. (Doc. 25.)
The contract at issue is a forbearance agreement between Plaintiff and
Defendant SunTrust dated May 23, 2009. The way Judge Bivins read that
agreement, SunTrust agreed not to foreclose on Plaintiff’s home so long as
Plaintiff made four timely payments of $1,400. Although Plaintiff allegedly
made all four payments on time, the complaint says that Defendants
foreclosed on her home anyway. Judge Bivins found that those facts stated a
claim for breach of contract and denied the motion to dismiss that count.

Defendants object to that conclusion, arguing that the forbearance
agreement was only valid until the end of September 2009. If that’s the case,
then they couldn’t have breached the agreement by foreclosing on Plaintiff’s
home when they did, “nearly seven . . . months after the forbearance
agreement expired by its stated terms.” (Doc. 25 ¶ 4.)
The problem with that argument is that no “stated terms” in the
agreement set an expiration date—by all appearances the agreement’s term
was indefinite. To argue otherwise, Defendants rely on a provision of the
agreement that is literally nonsense: “*Note: On or before [____] ; you must
send updated [_____]. At that time, your account will be reviewed for a
possible Loss Mitigation workout.” (Doc. 25-1 at 2 (bracketed blanks indicate
empty space in the agreement).) Perhaps if there were a date supplied after
the words “on or before,” then there would be something to Defendants’
argument. But there wasn’t one, so Judge Bivins was quite correct to find
the forbearance agreement had not expired when Plaintiff’s home was
foreclosed upon.
Likewise, Defendants’ objection based on the statute of frauds is
without merit. As Judge Bivins correctly noted, “[b]ecause the parties’
forbearance agreement was in writing, it does not run afoul of the Statute of
Frauds.” (Doc. 24 at 19 n.6.)

Therefore, after due and proper consideration of all portions of this file
deemed relevant to the issues raised, and a de novo determination of those

2

portions of the Report and Recommendation to which objection is made, the
Report and Recommendation of the Magistrate Judge made under 28 U.S.C.
§ 636(b)(1)(B) is ADOPTED as the opinion of this Court, and it is
ORDERED that Defendants’ motion to dismiss is GRANTED in part and
DENIED in part as follows:
(1)

With respect to Plaintiff’s claims for wrongful foreclosure (Count
I), fraud (Count II), breach of implied covenant of good faith and
fair dealing (Count IV), intentional infliction of emotional
distress (Count V), negligence (Count VI), wantonness (Count
VII), slander of title (Count VIII), and transfer of title (Count
IX), the motion to dismiss is GRANTED;

(2)

With respect to Plaintiff’s claim for breach of contract (Count
III), the motion to dismiss is DENIED.

DONE and ORDERED this 26th day of September, 2013.

/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE

3