Pucci v. Bank of America, N.A. et al
Filing
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ORDER granting in part and denying in part 34 motion to dismiss (the motion is granted as to Counts IV and X, and otherwise denied); granting in part and denying in part 25 motion to dismiss (the motion is granted as to Counts II and VIII, and otherwise denied). No later than 4/6/2016, Defendants Specialized Loan Servicing LLC, Nationstar, and Wells Fargo shall file answers to the remaining counts of the Amended Complaint. This case is set for a telephone status conference on 4/8/2016 at 10:00 a.m. The parties are directed to contact CourtCall at (866) 582-6878 no later than 4/4/2016 to make the telephone conference call arrangements. See Order for details. Signed by Judge Timothy J. Corrigan on 3/23/2016. (ALB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MARIA PUCCI,
Plaintiff,
v.
Case No. 3:14-cv-1236-J-32MCR
BANK OF AMERICA, N.A.,
SPECIALIZED LOAN SERVICING,
LLC, NATIONSTAR MORTGAGE,
LLC, and WELLS FARGO BANK,
N.A., as Trustee for the Certificate
Holders of Banc of America Mortgage
Securities, Inc. Alternative Loan Trust
2007-2, Mortgage Pass-Through
Certificates, Series 2007-2,
Defendants.
ORDER
Maria Pucci says that, even before her first payment on her loan was due, she
started receiving erroneous dunning letters from her bank leading to negative
consequences that have persisted. She sued the banks and servicers involved with her
loan. This case is now before the Court on Defendant Specialized Loan Servicing,
LLC’s (“SLS”) partial motion to dismiss the Amended Complaint (Doc. 25) and a
motion to dismiss jointly filed by Defendants Nationstar Mortgage, LLC and Wells
Fargo Bank, N.A. (Doc. 34).
I.
ALLEGATIONS OF AMENDED COMPLAINT1
On March 22, 2007, Pucci executed and delivered an interest only promissory
note (“Note”) in the amount of $1,260,000 to Bank of America which was secured by a
mortgage. (Doc. 24 ¶¶ 11, 14.) The first installment payment under the note was due
on May 1, 2007. (Doc. 24 ¶ 16.) However, in March 2007 Bank of America improperly
assessed a late fee. (Doc. 24 ¶ 17.) Pucci issued a check on May 3, 2007 for the first
installment payment, but Bank of America incorrectly applied the funds to the wrong
loan number. (Doc. 24 ¶¶ 18, 19.)
One month after origination, Pucci began receiving foreclosure letters and
learned that Bank of America was submitting negative reports to national credit
reporting agencies (“NCRAs”). (Doc. 24 ¶ 20.) Pucci contacted Bank of America
regarding the errors and was assured that the problem had been resolved and the
funds were applied to the correct account. (Doc. 24 ¶ 21.) However, Bank of America
continued to assess late fees and Pucci repeatedly contacted Bank of America to correct
the errors, but to no avail. (Doc. 24 ¶¶ 23-26.) She eventually learned that the NCRAs
listed her account as delinquent or associated with late payments. (Doc. 24 ¶ 27.) Bank
of America’s actions negatively impacted Pucci’s credit rating such that she was
unable to take advantage of refinancing options. (Doc. 24 ¶ 33.)
The Court accepts as true the allegations in the Amended Complaint and
views them in the light most favorable to Pucci when ruling on the motions to dismiss.
Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir. 2006); Michel v. NYP
Holdings, Inc., No. 15-11453, --- F.3d ----, 2016 WL 860647, at *16 (11th Cir. Mar. 7,
2016).
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Bank of America transferred the servicing rights to Pucci’s loan to SLS on
November 1, 2012. (Doc. 24 ¶ 36.) Upon transfer, Pucci notified SLS of the prior
servicing errors and SLS assured her that they had been resolved; however, Pucci
continued to receive delinquency and foreclosure notices. (Doc. 24 ¶¶ 38, 39, 43.) SLS
continued to report the debt to the NCRAs as past due, delinquent, and late. (Doc. 24
¶ 41.) Pucci received as many as 10 to 20 calls per day from SLS regarding her
delinquent balance. (Doc. 24 ¶ 43.)
On August 29, 2013, while SLS remained the servicer of the obligation,
ownership rights to Pucci’s loan were transferred from Bank of America to Wells
Fargo. (Doc. 24 ¶ 46.) Wells Fargo boarded the loan upon receipt but failed to correct
the late fees and past due balance. (Doc. 24 ¶ 47.) Servicing rights were transferred
from SLS to Nationstar on April 1, 2014. (Doc. 24 ¶ 48.) Pucci notified Nationstar of
the errors and despite her making monthly payments and Nationstar assuring her
that the errors had been resolved, Pucci continued to receive correspondence that her
account was delinquent. (Doc. 24 ¶¶ 49, 50, 51.) Due to the actions of Defendants,
Pucci was unable to refinance or restructure the Note. (Doc. 24 ¶ 54.)
II.
STANDARD OF REVIEW
When reviewing a motion to dismiss under Rule 12(b)(6), the Court must view
the allegations in the light most favorable to the plaintiff and accept the allegations of
the complaint as true. Speaker v. U.S. Dep’t of Health & Human Servs., 623 F.3d 1371,
1379 (11th Cir. 2010). To avoid dismissal, a complaint must contain sufficient factual
allegations to “state a claim to relief that is plausible on its face” and “raise a right to
relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
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570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief
requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original)
(citations and quotation marks omitted).
III.
SPECIALIZED LOAN SERVICING LLC’S PARTIAL MOTION TO
DISMISS COUNTS II, V, VIII, AND XVI OF AMENDED COMPLAINT
(DOC. 25)
A.
Breach of Contract (Count II)
Under Florida law, to state a claim for breach of contract a plaintiff must allege
the existence of a contract, a material breach, and resulting damages. Baron v. Osman,
39 So. 3d 449, 451 (Fla. Dist. Ct. App. 2010). SLS seeks dismissal of this claim because
the Amended Complaint fails to allege the existence of a contract between Pucci and
SLS. (Doc. 25 at 3.)
The Amended Complaint does allege that “[a] contract existed between [Pucci]
and [SLS because], as the servicer of this particular debt obligation there is a
contractual duty to competently service the loan and apply payments or assess late
fees according to the terms of the Promissory Note and Mortgage.” (Doc. 24 ¶ 78.) The
Amended Complaint further alleges that SLS breached Paragraph 6(a) of the
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Promissory Note2 by charging improper late fees and failing to competently service
the loan, and continued to breach the Note because it failed to correct the mistakes
and was complicit in Bank of America’s charging improper late fees, misapplication of
payments, and demands for varying mortgage amounts. (Doc. 24 ¶¶ 83, 84.) However,
SLS is not a party to either the Note or Mortgage, and the Amended Complaint alleges
that Pucci entered into the contract with Bank of America, which ultimately
transferred its ownership rights to Wells Fargo. (See Doc. 24 ¶¶ 11, 14, 46.) The
Amended Complaint offers no evidence of a contract between Pucci and SLS, and fails
to support its conclusory allegation with sufficient facts. The Amended Complaint
therefore fails to state a claim for breach of contract against SLS.3
B.
Breach of Covenant of Good Faith and Fair Dealing (Count VIII)
The Amended Complaint alleges that SLS breached the implied covenant of
good faith and fair dealing, specifically acting in bad faith by being complicit in Bank
Paragraph 6(a) states, “If the Note Holder has not received the full amount of
any monthly payment by the end of 15 calendar days after the date it is due, I will pay
a late charge to the Note Holder. The amount of the charge will be 5.0% of my overdue
payment of interest and/or principal and interest. I will pay this late charge promptly
but only once on each late payment.” (Doc. 24 at 47.)
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In her response to SLS’s motion to dismiss, Pucci for the first time asserts
that a contract exists because SLS was entitled to collect payments and became the
“Note Holder” and therefore a “successor in interest/ agent to the lender.” (Doc. 35 ¶¶
9-10.) Pucci’s assertion that SLS was a Note Holder is inconsistent with allegations in
the Amended Complaint that Pucci executed the Note and Mortgage and delivered
them to Bank of America, and upon transfer to Wells Fargo, Wells Fargo became the
“subsequent holder” of the obligation. (See Doc. 24 ¶¶ 92, 155.) Thus, the Amended
Complaint alleges that only Bank of America and Wells Fargo were the “Note
Holders.”
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of America’s actions and failing to correct its mistakes despite Pucci informing SLS of
the errors. (Doc. 24 ¶ 143.)
The covenant of good faith and fair dealing “ensures that neither party will do
anything that will injure the right of the other party to receive the benefits of the
contract.” Martorella v. Deutsche Bank Nat. Trust Co., 931 F. Supp. 2d 1218, 1225
(S.D. Fla. 2013) (citing Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir.
1999)). Florida law recognizes this implied covenant in every contract, but the
covenant must actually relate to the performance of a contract; a breach of the
covenant standing alone is insufficient. Id.; see also Resnick v. AvMed, Inc., 693 F.3d
1317, 1329 (11th Cir. 2012) (applying Florida law); Centurion Air Cargo, Inc. v. United
Parcel Serv. Co., 420 F.3d 1146, 1151 (11th Cir. 2005) (applying Florida law); Shibata
v. Lim, 133 F. Supp. 2d 1311, 1318 (M.D. Fla. 2000) (citing Burger King, 169 F.3d at
1315, 1318). As set forth in section III.A., supra, the Amended Complaint does not
sufficiently allege the existence of a contract between Pucci and SLS, and without a
contract there can be no implied covenant. The Amended Complaint therefore fails to
state a claim against SLS for breach of the covenant.
IV.
DEFENDANTS NATIONSTAR MORTGAGE LLC’S AND WELLS FARGO
BANK, N.A.’S MOTION TO DISMISS PLAINTIFF’S AMENDED
COMPLAINT (DOC. 34)
A.
Breach of Contract against Nationstar (Count IV)
The Amended Complaint alleges that a contract exists between Pucci and
Nationstar because “as the servicer of this particular debt obligation there is a
contractual duty to competently service the loan and apply payments or assess late
fees according to the terms of the Promissory Note and Mortgage.” (Doc. 24 ¶ 105.)
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The Amended Complaint further alleges that Nationstar breached the contract by
“failing to competently correct the invalid delinquency” on Pucci’s loan, and by failing
to correct mistakes and being complicit in Bank of America’s and SLS’s “improper late
fees, invalid delinquency and demands for varying mortgage payment amounts.” (Doc.
24 ¶¶ 108, 109.)
The analysis regarding the breach of contract claim asserted against SLS
applies to the breach of contract claim asserted against Nationstar. For the same
reasons that the Amended Complaint fails to state a breach of contract claim against
SLS, it also fails to state a breach of contract claim against Nationstar. See section
III.A.
B.
Breach of Covenant of Good Faith and Fair Dealing against
Nationstar (Count X)
The Amended Complaint fails to state a claim for breach of contract against
Nationstar. Accordingly, for the reasons set forth in section III.B., supra, the Amended
Complaint also fails to state a corresponding claim for breach of the implied covenant
of good faith and fair dealing.
V.
MOTIONS TO DISMISS OTHER COUNTS
The Court has considered and will deny SLS’s motion to dismiss the FDCPA
and libel counts (Counts V and XVI). The Court has also considered and will deny
Nationstar and Wells Fargo’s motion to dismiss the remaining counts of the Amended
Complaint.
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Accordingly, it is hereby
ORDERED:
1.
Specialized Loan Servicing LLC’s Partial Motion to Dismiss Counts II, V,
VIII, and XVI of Amended Complaint (Doc. 25) is GRANTED IN PART and
DENIED IN PART. The motion is granted to the extent that Counts II and VIII are
dismissed. The motion is otherwise denied.
2.
Defendants Nationstar Mortgage LLC’s and Wells Fargo Bank, N.A.’s
Motion to Dismiss Plaintiff’s Amended Complaint (Doc. 34) is GRANTED IN PART
and DENIED IN PART. The motion is granted to the extent that Counts IV and X
are dismissed. The motion is otherwise denied.
3.
At the upcoming telephone status conference, the Court will address
whether the breach of contract and covenant claims should be dismissed with or
without prejudice.
4.
No later than April 6, 2016, Defendants SLS, Nationstar, and Wells
Fargo shall file answers to the remaining counts of the Amended Complaint.
5.
This case is set for a telephone status conference on April 8, 2016 at
10:00 a.m. The parties are directed to contact CourtCall at (866) 582-6878 no later
than April 4, 2016 to make the telephone conference call arrangements.4
CourtCall will provide counsel with a number to call a CourtCall operator ten
minutes before the hearing who will then connect the parties with the courtroom’s
audioconference system. There is a fee for using this service ($30 per caller for the first
45 minutes, $7 per 15 minute increment thereafter). The parties may not use cell
phones or speaker phones during the call.
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DONE AND ORDERED in Jacksonville, Florida the 23rd day of March, 2016.
ab
Copies:
Counsel of record
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