Gibson v. Chase Home Finance, LLC et al
Filing
71
ORDER granting 38 --motion to dismiss; dismissing with prejudice Counts II and V; dismissing without prejudice Counts I, III, IV, VI, and VII; second amended complaint due 1/6/2012. Signed by Judge Steven D. Merryday on 12/16/2011. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PAUL F. GIBSON,
Plaintiff,
v.
CASE NO.: 8:11-cv-1302-T-23TBM
CHASE HOME FINANCE, LLC, et al.,
Defendants.
/
ORDER
Paul F. Gibson alleges (Doc. 34) that Chase Home Finance, LLC, (now
merged into JPMorgan Chase Bank, N.A.) wrongfully forced Gibson, a
condominium mortgagor, to pay a couple thousand dollars for excessive and
duplicative insurance against flood damage. For himself and on behalf of a putative
class, Gibson sues Chase Home Finance and JPMorgan Chase Bank and asserts
common law claims for breach of contract, for breach of the duty of good faith and
fair dealing, for unconscionability, for conversion, and for unjust enrichment, as well
as statutory claims for violation of the Florida Deceptive and Unfair Trade Practices
Act, the Real Estate Settlement Procedures Act, and the Bank Holding Company
Act.
The complaint is littered with conclusory accusations and legal claims, to
which Chase gamely responds with a motion to dismiss (Doc. 38) that rushes
through arguments, many of which are relegated entirely to one of the motion’s
twenty-four footnotes. This order aims primarily to coax the parties to trim and focus
the issues.
*
*
*
Central to this action is the purpose and application of the National Flood
Insurance Act (NFIA), 42 U.S.C. §§ 4001 – 29. Under the NFIA, a federally
regulated lender cannot lend for the purchase of a condominium unit in a “special
flood hazard” area unless the unit is covered by flood insurance “in an amount at
least equal to” the lesser of “the outstanding principal balance of the loan or the
maximum limit of coverage [] available under the [NFIA],” which for a
condominium unit is $250,000. 42 U.S.C. §§ 4012a(b)(1), 4013(b)(2); 44 C.F.R.
§ 61.6(b); see Audler v. CBC Innovis Inc., 519 F.3d 239, 245 (5th Cir. 2008). No one
claims that Gibson’s condominium unit was outside a special flood hazard area when
the disputed force-placing of flood insurance began.
Although the complaint is at points vague, repetitive, and circuitous, the basic
facts alleged are these. In 2007, Gibson purchased a condominium unit with a
mortgage that JPMorgan Chase held and that Chase Home Finance serviced.
(Henceforth the defendants are referred to collectively as “Chase.” The distinction
between the two is not material at this stage of the litigation.) Section 5 of the
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mortgage (Doc. 34, Ex. 1), which is attached to the complaint, requires Gibson to
maintain flood insurance for the unit and states:
This insurance shall be maintained in the amounts (including deductible
levels) and for the periods that Lender requires. What Lender requires
. . . can change during the term of the Loan. The insurance carrier
providing the insurance shall be chosen by Borrower subject to the
Lender’s right to disapprove Borrower’s choice, which right shall not be
exercised unreasonably. . . .
If Borrower fails to maintain any of the coverage described above,
Lender may obtain insurance coverage, at Lender’s option and
Borrower’s expense. . . . Borrower acknowledges that the cost of
insurance coverage so obtained might significantly exceed the cost of
insurance that Borrower could have obtained.
Also attached to the complaint, a rider to the mortgage (Doc. 34, Ex. 3), Section B,
provides that Gibson may satisfy the flood insurance requirement with an owners’
association policy “satisfactory to the Lender,” although only “to the extent” that an
owners’ association policy provides the coverage that the Lender requires.
Each year Chase requested proof of sufficient flood insurance on Gibson’s
unit. In 2007, 2008, and 2009, Gibson sent Chase a copy of his building’s flood
insurance policy, which Chase accepted as proof of sufficient coverage. In
March, 2010, Chase rejected the building’s flood insurance as insufficient, and a few
weeks later Chase forced on Gibson a $250,000 flood insurance policy that in Chase’s
view raised the coverage on Gibson’s unit to a sufficient amount. The annual cost of
the policy, $7,680, was charged to an escrow account that Gibson kept with Chase.
After the force-placement, Gibson quickly sent Chase another copy of his building’s
flood insurance policy, and Chase cancelled the additional insurance and removed
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the charge from the escrow account. Less than two weeks later – the end of April,
2010 – Chase again charged Gibson for $250,000 in flood insurance, this time for
$7,800. In July, 2010, Gibson obtained $147,000 in coverage (cost, $2,015). Chase
again cancelled the additional insurance, only to charge Gibson for extra insurance a
third time in August, 2010, in this instance for $152,913 in coverage at a cost of
$4,697. In early 2011, Chase cancelled the third force-placement but on several
occasions asked Gibson for proof of sufficient flood insurance. Chase claimed that
Gibson’s coverage remained insufficient. The force-placement cycle occurred a final
time; Chase listed a $4,742 charge in Gibson’s escrow account for flood insurance,
removed the charge, and in April, 2011, informed Gibson that his flood insurance
was insufficient by $152,913.
In sum, if Gibson’s factual allegations are true, Chase repeatedly placed but
always removed from Gibson’s account a charge for flood insurance, Gibson paid a
$2,015 charge for third-party flood insurance, and Chase gained a small sum of
interest on money temporarily in Gibson’s escrow account. (Doc. 34, ¶ 231) (The
claim that Chase gained interest is confusing because Gibson never alleges that he
paid a flood insurance charge listed in the escrow account.)
Chase moves to dismiss most claims for lack of jurisdiction on the ground that
Chase’s reversal of each charge for additional flood insurance leaves Gibson without
a redressable injury-in-fact. The argument is unconvincing. Gibson suffers a
redressable injury for all but two of the claims if he was and is wrongfully forced to
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pay the $2,015 annual charge for flood insurance from a third-party. The two
exceptions are the conversion and unjust enrichment claims, which seek the
disgorgement of money that Chase wrongfully gained. Nominal damages and
interest compensate for a temporary conversion or unjust enrichment. Montage
Group, Ltd. v. Athle-Tech Computer Sys., Inc., 889 So.2d 180, 199 (Fla. 2d DCA 2004);
12 Fla. Jur. 2d Conversion and Replevin § 33; 18 Am. Jur. 2d Conversion §§ 132, 134.
Dismissal of a claim for lack of jurisdiction is not yet warranted.
Gibson orients the complaint around the allegation that Chase repeatedly
forced Gibson to purchase more than the NFIA’s $250,000 coverage limit in flood
insurance. This seems misguided. Because the NFIA’s main purpose is “to reduce
. . . the massive burden on the federal fisc of [] ever-increasing federal flood disaster
assistance,” Till v. Unifirst Fed. Sav. and Loan Ass’n, 653 F.2d 152, 159 (5th Cir. Aug.
7, 1981), “every single federal court to consider whether a federal private right of
action arises under section 4012a has concluded that the federal treasury, not
individual mortgagors [], is the class the statute intends to protect.” Wentwood
Woodside I, LP v. GMAC Commercial Mortg. Corp., 419 F.3d 310, 323 (5th Cir. 2005)
(citing the Fourth, Fifth, Seventh, and Eighth Circuits); Custer v. Homeside Lending,
Inc., 858 So.2d 233, 244-46 (Ala. 2003). The NFIA, which aims in part to protect
development in a flood-prone area, should not deter a lender from operating in a
flood-prone area by exposing the lender to a unique private cause of action from
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which a lender operating only outside a flood-prone area is free. See Till, 653 F.2d at
160-61.
Hence, the NFIA mandates only a minimum amount of flood coverage (the
lender must ensure the borrower is insured “at least equal to . . .”). A lender is free to
establish by contract a right to require that a borrower hold a larger amount of flood
insurance, exactly as the mortgage in this action allows (“insurance shall be
maintained in the amounts . . . that Lender requires”). Dept. of the Treasury, et. al,
Loans in Areas Having Special Flood Hazards; Interagency Questions and Answers Regarding
Flood Insurance, 74 Fed.Reg. 35914, 35936 (2009) (“Lenders are permitted to require
more flood insurance coverage than required by the [NFIA]. . . . Each lender has the
responsibility . . . to protect its ongoing interest in the collateral”); Custer, 858 So.2d
at 244 (“Congress would not be adverse to the contractual procurement of force-placed
insurance covering the full value of the property”) (emphasis in original).
Gibson asserts that Chase wronged him under the NFIA, but, because the
NFIA provides no right to sue, Gibson must rummage through (mainly) state laws
searching for one that provides a cause of action. The problem for Gibson is that he
suffered no “wrong” under the NFIA. When viewed for what they are – attempts to
gain relief for a non-existent wrong under the NFIA – several of Gibson’s claims
quickly collapse.
To begin with, Gibson alleges no breach of contract. The mortgage requires
Gibson to maintain flood insurance in the amount that Chase in its sole discretion
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requires, the mortgage allows Chase to purchase flood insurance on Gibson’s behalf,
and the mortgage warns Gibson that force-placed flood insurance may cost more
than the market rate. Arguing that Chase acted unreasonably, Gibson improperly
attempts to amend the contract by substituting his judgment of a reasonable amount
of flood insurance for Chase’s.
In any event, Gibson fails to allege with plausibility that Chase’s flood
insurance requirement was unreasonable. Ten times the complaint asserts that
Gibson’s building maintained insurance that covered the full value of Gibson’s unit
(Doc. 34, ¶¶ 3, 23, 24, 29, 43, 51, 77, 126, 128, 132), but nothing helps a reader assess
the assertion’s plausibility. A plausible claim enjoys a factual grounding, as in this
sentence from Chase’s motion to dismiss, “In 2008, the condo association
discontinued its [old flood insurance] and purchased a cheaper private flood
insurance policy for $10,000,000, which[, because the association includes 103 units,]
equals $97,087.39 of coverage per unit.” (Doc. 38 at 8) Compare that proposition
with one of the ten assertions in the complaint, “the [building’s flood insurance
policy] . . . covered the full replacement cost of the condominium complex.” (Doc.
34 ¶ 132) (emphasis in original). Gibson’s sentence is conclusory, added emphasis
and nine repetitions notwithstanding.
Chase’s elaboration is unnecessary to conclude that Gibson’s series of bare
protests is implausible. That said, Chase’s explanation of the force-placements is
detailed, coherent, and consistent. Gibson’s unit having only $97,087.39 in coverage
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explains why Chase demanded another $152,913. $97,087 plus $152,913 equals
$250,000, and, because the mortgage is for nearly $800,000 (Doc. 34, Ex. 1 at 2),
$250,000 is apparently the minimum flood insurance that Chase must require Gibson
to carry under the NFIA. (Again, the NFIA requires flood insurance covering the
lesser of the outstanding principal balance of the loan or $250,000.) Chase was free
to demand insurance over that limit to protect comprehensively Chase’s investment
in Gibson’s unit, but the math suggests that Chase attempted to require merely the
NFIA minimum. Gibson, meanwhile, provides only unsupported accusation, devoid
of fact or detail. Gibson repeats (Doc. 34, ¶¶ 4, 30, 43, 46, 53, 104) the benefit cap
under the NFIA, which is misleading, see Custer 858 So.2d at 241 n.11, and protests
that a “Residential Condominium Building Association Policy” (RCBAP), the type
of flood insurance Gibson’s building owned, “by its nature” covers the replacement
value of each unit, which is false. The Federal Emergency Management Agency,
Mandatory Purchase of Flood Insurance Guidelines 47 (2007) (“an RCBAP not insured to
full value . . . could expose the lender and borrower to unknown risk”). No alleged
fact suggests either that Gibson paid for flood insurance greater than the NFIA
minimum or that Chase charged Gibson for flood insurance greater than, or even
close to, the replacement value of the unit.
To repeat the key point (from a similar action before the Supreme Court of
Alabama):
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the federal requirement that flood insurance be purchased for an amount
at least equal to the amount of the outstanding loan balance [or
$250,000], with no concomitant requirement that borrowers also insure
the equity in their homes, does not imply any congressional intention to
prevent the lender and borrower from contractually agreeing that there
should be insurance coverage for that equity. . . . The [plaintiffs] agreed
to keep the property insured against loss “. . . in such amounts . . . as may
be required by the Mortgagee” and further agreed that the mortgagee
could force-place such insurance . . . .
Custer, 858 So.2d at 245 (emphasis in original); see also Kolbe v. BAC Home Loans
Servicing, L.P., 2011 WL 3665394 at *5, n.2 (D. Mass. 2011) (distinguishing Hofstetter
v. Chase Home Fin., LLC, 751 F.Supp.2d 1116 (N.D. Cal. 2010), a case Gibson cites
repeatedly in the complaint, on the ground that Hofstetter never considers whether the
plaintiffs’ mortgages allow the mortgagee to increase the plaintiffs’ flood insurance).
Because Gibson fails to identify a breached contract term, the good faith and
fair dealing claim, which requires a breach, is untenable. Centurion Air Cargo, Inc. v.
United Parcel Service, Co., 420 F.3d 1146, 1151-52 (11th Cir. 2005). Conversion
involves “an unauthorized act which deprives another of his property,” Fogade v. ENB
Revocable Trust, 263 F.3d 1274, 1291 (11th Cir. 2001), but each of Chase’s alleged acts
was “authorized” by the mortgage contract. An “enrichment” is “unjust” only if “it
would be inequitable for [a defendant] to retain [a] benefit without paying for it.”
Nova Info. Sys., Inc. v. Greenwich Ins. Co., 365 F.3d 996, 1006-07 (11th Cir. 2004). The
terms of the mortgage and the hollowness of Gibson’s conclusory allegations render
implausible a claim that Chase received an “inequitable” benefit. Chase demanded
and received only that for which Chase contracted and only that to which Gibson –
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whom the complaint calls “an experienced real estate agent” – agreed. See Berry v.
Budget Rent A Car Sys., Inc., 497 F.Supp.2d 1361, 1369 (S.D. Fla. 2007) (Cohn, J.);
Moynet v. Courtois, 8 So.3d 377, 379 (Fla. 3d DCA 2009).
The complaint alleges that Chase’s ability under the mortgage to impose
“additional unnecessary flood insurance” on Gibson renders the mortgage
unconscionable. Gibson’s claim for unconscionability mistakenly assumes a
plausible allegation that Chase imposed “unnecessary” insurance. Regardless, a
contract is unconscionable only if “the contract terms are so outrageously unfair as to
shock the judicial conscience.” Woebse v. Health Care and Retirement Corp. of Am., 977
So.2d 630, 632 (Fla. 2d DCA 2008). That is, “no man in his senses and not under
delusion would make [the contract] on the one hand, and [] no honest and fair man
would accept [it] on the other.” 977 So.2d at 632; see also Barakat v. Broward County
Housing Auth., 771 So.2d 1193, 1195 (Fla. 4th DCA 2000). In this case, Gibson
suffered annoyance as he dealt with Chase’s requests for proof of insurance, Gibson
bought about $2,000 in flood insurance he never wanted, and Gibson lost a small
sum of interest on money Chase held while waiting for Gibson to prove his flood
insurance coverage to Chase’s satisfaction. Each “burden” appears either necessary
for Chase to comply with the NFIA or indicative of Chase’s upholding its
“responsibility . . . to protect its ongoing interest in the collateral” of the mortgage.
74 Fed.Reg. at 35936. The flood insurance requirement serves the reasonable
purpose of ensuring that – without incurring expensive litigation – Chase both
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complies with a federal law and protects a property that secures Chase’s loan. No
grievance arising from the flood insurance requirement stirs the conscience.
That leaves Gibson’s three statutory claims. First, Gibson seeks both money
and equitable relief under the Florida Deceptive and Unfair Trade Practices Act
(FDUTPA), Sections 501.201 – 501.213, Florida Statutes, which “provides [] a civil
cause of action for unfair methods of competition, or unconscionable, deceptive, or
unfair acts or practices in the conduct of any trade or commerce.” City First Mortg.
Corp. v. Barton, 988 So.2d 82, 86 (Fla. 4th DCA 2008). Uselessly stating that
“Chase’s conduct constitutes false, misleading, and[] deceptive practices,” (Doc. 34
at 40) the complaint fails to specify which of Chase’s acts purportedly violates
FDUTPA.
The complaint’s only potential FDUTPA allegation is that Chase’s letters to
Gibson incorrectly state the NFIA’s flood insurance minimum. According to
Gibson, the letters state that federal law requires Gibson to maintain flood insurance
covering the replacement value of his condominium unit. If this is Chase’s
purportedly deceptive act, the claim for money under FDUTPA fails. To survive
dismissal, Gibson must allege “(1) a deceptive act or unfair practice; (2) causation;
and (3) actual damages.” Barton, 988 So.2d at 86. Supposing Gibson is correct that
Chase’s letters are deceptive, what are the “actual damages”? Even if Gibson need
not carry replacement-value coverage under federal law, Chase may require Gibson
to carry replacement-value coverage under the mortgage. Chase’s alleged
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misstatement therefore caused Gibson no loss recoverable under the FDUTPA. See
Barton 988 So.2d at 86 (“FDUTPA does not provide for the recovery of nominal
damages, speculative losses, or compensation for subjective feelings of
disappointment”).
The claim for equitable relief under FDUTPA, although more promising, is
too vaguely alleged. (Further, briefing on the claim’s validity, crushed amid the
sundry disputes started by the disarrayed complaint, is incomplete.)
Next, Gibson alleges that Chase violated two provisions of the Real Estate
Settlement Procedure Act (RESPA), 12 U.S.C. §§ 2601 – 2617; specifically, Section
2605(l), which requires a lender to terminate force-placed insurance within fifteen
days of receiving proof of sufficient insurance from a borrower, and Section 2605(m),
which requires a lender to charge only a “bona fide and reasonable” price for forceplaced insurance. As Judge Altonaga thoroughly explains in Williams v. Wells Fargo
Bank N.A., 2011 WL 4368980, *4-*7 (S.D. Fla. Sept. 19, 2011), Sections 2605(k) - (m)
of RESPA, enacted by the Dodd-Frank Act, are not yet in effect.
Finally, Gibson alleges that Chase transgressed two of the anti-tying provisions
of the Bank Holding Company Act (BHCA), 12 U.S.C. §§ 1971 – 1979. Sections
1972(1)(A) and (B) of the BHCA prohibit a bank from conditioning credit (in this
case, a mortgage) on a borrower’s purchase of “some additional credit, property, or
service” from the bank or the bank’s subsidiary. Gibson argues that Chase violated
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Sections 1972(1)(A) and (B) by tying to the mortgage Chase’s right to force on
Gibson insurance provided by a subsidiary.
Each BHCA anti-tying provision proscribes “the extension of credit on a [tiein] condition designed to increase the economic power of the bank and to reduce
competition.” Baggett v. First Nat. Bank of Gainesville, 117 F.3d 1342, 1346 (11th Cir.
1997). But the BHCA is not supposed “to interfere with the conduct of appropriate
traditional banking practices.” Highland Capital, Inc. v. Franklin Nat. Bank, 350 F.3d
558, 565 (6th Cir. 2003) (quoting McCoy v. Franklin Sav. Ass’n, 636 F.2d 172, 175 (7th
Cir. 1980)); Bieber v. State Bank of Terry, 928 F.2d 328, 330 (9th Cir. 1991); Palermo v.
First Nat. Bank and Trust Co. of Oklahoma City, 894 F.2d 363, 367 (10th Cir. 1990). A
sound bank seeks and ensures sound investments (that is, loans); accordingly, a bank
may use economic power to protect an investment if the use is not anti-competitive.
Parsons Steel, Inc. v. First Ala. Bank of Montgomery, N.A., 679 F.2d 242, 246 (11th Cir.
1982). “A wide range of conditions placed upon debtors in efforts to protect the
investment of the creditor bank” are acceptable. N.E. Co. v. Bank of Gwinnett County,
891 F.Supp. 1569, 1575 (N.D. Ga. 1995); Graue Mill Dev. Corp. v. Colonial Bank &
Trust Co., 927 F.2d 988, 992 (7th Cir. 1991); Palermo, 894 F.2d at 369 (“Section 1972
was not intended to prevent the bank from taking steps to insure adequate security for
its loans”); B.C. Rec. Indus. v. First Nat. Bank of Boston, 639 F.2d 828, 832 (1st Cir.
1981).
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A bank commonly protects an investment by requiring the borrower to insure
the loan’s collateral. McClain v. S.C. Nat. Bank, 105 F.3d 898, 902 (4th Cir. 1997).
Gibson’s failure plausibly to allege that Chase required flood insurance covering
more than a fraction of the replacement value of the unit is once again important to
bear in mind. By demanding flood insurance for a portion of the unit’s value, Chase
protects an investment. Gibson holds a property that secures Chase’s large loan,
so – naturally – Chase enjoys a contractual entitlement to ensure that Gibson protects
that property. In the face of this eminently plausible and proper reason that Chase
would require additional flood insurance, Gibson proves unable to explain with
plausibility how Chase’s alleged actions increase Chase’s economic power or harm
competition.
Arguing that it gains no economic power from the flood insurance provision of
the mortgage, Chase emphasizes that Gibson may choose which insurance carrier
provides force-placed coverage. Chase raises an informative case, Kenty v. Bank One,
Columbus, N.A., 92 F.3d 384 (6th Cir. 1996), abrogated on other grounds, Humana Inc. v.
Forsyth, 525 U.S. 299 (1999), as recognized, Riverview Health Institute LLC v. Med. Mut.
of Ohio, 601 F.3d 505, 516-17 (6th Cir. 2010), in which a bank both required
automobile insurance and reserved the right to force-place automobile insurance as a
condition on a automobile loan. The plaintiffs argued that the condition violates the
BHCA. Kenty disagrees:
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the Bank did not require that the plaintiffs purchase any insurance
through it or [another specific company]. Indeed, the plaintiffs were
free to purchase insurance on the open market at fully competitive
prices. In a sense, the Bank was willing to compete with other providers
of insurance and thus it is hard to see how this practice can be
considered anti-competitive.
92 F.3d at 395. Nothing in Gibson’s papers sufficiently explains how requiring flood
insurance from a third-party “benefits [Chase] in some way other than merely
allowing [Chase] additional asset protection.” Palermo, 894 F.2d at 368-69.
Rather, Gibson argues that he had no realistic opportunity to cover the unit
with enough third-party insurance to satisfy Chase. That claim remains implausible
until Gibson provides factual allegations – as opposed to bare conclusions – showing
the flood insurance coverage on his unit. Further, Gibson fails to allege facts
establishing that American Security Insurance Company, which provides flood
insurance if one of Chase’s borrower fails to buy third-party insurance, is Chase’s
“subsidiary” as that term is defined in the BHCA.
Also, Gibson fails to reasonably explain how Chase’s force-placing flood
insurance causes a competitive harm. Although a BHCA plaintiff need not allege a
tie’s “specific adverse effects on competition,” Parsons Steel, 679 F.2d at 245, a
plaintiff must allege that the tie could harm competition. Palermo, 894 F.2d at 368.
An effective tying arrangement harms competition in the market for the tied product
– in this case, the market for flood insurance. Amey, Inc. v. Gulf Abstract & Title, Inc.,
758 F.2d 1486, 1502-03 (11th Cir. 1985); Nat’l Souvenir Ctr., Inc. v. Historic Figures,
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Inc., 728 F.2d 503, 510 (D.C. Cir. 1984) (“the evil of a tying arrangement is that it
allows a seller who has monopoly power in the tying product market to use it as
leverage to gain a share of the tied product market”). Gibson admits he would not on
his own purchase the insurance that Chase forced on him. “When a purchaser is
‘forced’ to buy a product he would not have otherwise bought even from another
seller in the tied-product market, there can be no adverse impact on competition
because no portion of the market which would otherwise have been available to other
sellers has been foreclosed.” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 16
(1984), abrogated on other grounds, Ill. Tool Works Inc. v. Ind. Ink, Inc., 547 U.S. 28
(2006); see also Doe v. Norwest Bank Minnesota, N.A., 107 F.3d 1297, 1305 (8th Cir.
1997).
Gibson objects that the BHCA claim requires “fact-based inquiries that are not
appropriate for a motion to dismiss,” but no “fact-based inquiry” is warranted if
Gibson asserts an untenable claim. The claim is not defective because of a lack of
discovery; the claim is defective because Gibson fails to allege that paying a Chase
“subsidiary” was necessary to obtain credit and Gibson presents no theory that, if the
facts in the theory are true, plausibly explains how Chase’s alleged actions could help
Chase or harm competition.
*
*
*
The motion (Doc. 38) to dismiss is GRANTED. Gibson’s unconscionability
and RESPA claims (Counts II and V) are DISMISSED WITH PREJUDICE. Each
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other claim (Counts I, III, IV, VI, and VII) is DISMISSED WITHOUT
PREJUDICE. Gibson may submit a second amended complaint by January 6,
2012.
A point in closing. No one benefits from a needlessly swollen complaint.
Gibson could eliminate redundancy and lose nothing pertinent – indeed, a leaner and
less disjointed complaint might gain plausibility. Added detail may enlighten;
repetition will not.
ORDERED in Tampa, Florida, on December 16, 2011.
Steven D. Merryday
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE
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