Machado et al v. Bank of America, N.A.

Filing 46

ORDER: Defendant Bank of America, N.A.'s Motion for Summary Judgment (Doc. # 39 ) is DENIED as premature. Bank of America may file another motion for summary judgment after the close of discovery. Signed by Judge Virginia M. Hernandez Covington on 8/2/2018. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LIUBERT MACHADO, and
ILEANA ACOSTA,
Plaintiffs,
v.

Case No.: 8:17-cv-2531-T-33AAS

BANK OF AMERICA, N.A.,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Bank of America, N.A.’s Motion for Summary Judgment (Doc. #
39), filed on June 18, 2018. Plaintiffs Liubert Machado and
Ileana Acosta responded on July 2, 2018. (Doc. # 40). Bank of
America replied on July 10, 2018. (Doc. # 43). For the reasons
that follow, the Motion is denied as premature.
I.

Background
An in-depth history of this case and the events that

preceded its initiation is not necessary at this juncture.
Suffice it to say that this case was initiated on October 30,
2017, after Plaintiffs were severed from an action brought by
over 70 plaintiffs against Bank of America. (Doc. # 1). On
March 7, 2018, Plaintiffs filed their Amended Complaint,
asserting a single common law fraud claim against Bank of

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America related to Bank of America’s administration of the
Home Affordable Modification Program (“HAMP”). (Doc. # 26).
The Amended Complaint alleges Bank of America committed
four fraudulent acts: (1) falsely telling Plaintiffs that
“they can’t be current on their mortgage to qualify for a
HAMP loan modification” and failing to tell Plaintiffs that
they

could

qualify

for

HAMP

if

default

was

reasonably

foreseeable (“HAMP Eligibility Claim”); (2) falsely telling
Plaintiffs

the

requested

supporting

financial

documents

Plaintiffs had submitted to BOA were missing (“Supporting
Documents Claim”); (3) falsely telling Plaintiffs that they
were approved for a HAMP modification and needed to start
making

trial

fraudulently
Plaintiffs’

payments

(“HAMP

omitting

how

account

would

Approval

inspection
be

applied

Claim”);
fees

and

charged

(“Inspection

(4)
to
Fee

Claim”). (Id. at ¶¶ 38, 41, 48, 55).
Bank of America moved to dismiss the Amended Complaint
on numerous grounds. (Doc. # 33). The Court granted that
motion in part and denied it in part on May 15, 2018, and
held that Plaintiffs’ fraud claim could only proceed as to
the HAMP Eligibility Claim. (Doc. # 37).
On June 18, 2018, Bank of America moved for summary
judgment on that claim, arguing Plaintiffs cannot prove the
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reliance necessary to establish fraud. (Doc. # 39). Bank of
America emphasizes that Plaintiffs were, in fact, in default
on their mortgage when they spoke with the Bank of America
representative who allegedly failed to inform Plaintiffs that
they could be eligible for a HAMP modification even if default
was

merely

imminent.

(Id.

at

6-7).

In

their

response,

Plaintiffs urge that the Motion for Summary Judgment should
be denied as premature because “[d]iscovery has only just
begun.” (Doc. # 40 at 3). Bank of America has replied, (Doc.
# 43), and the Motion is now fully briefed.
Subsequently,

after

briefing

on

the

Motion

closed,

Plaintiffs moved for a two-week extension of the discovery
deadline. (Doc. # 44). On July 31, 2018, the Court granted
Plaintiffs’ motion and extended the discovery deadline to
August 14, 2018. (Doc. # 45).
II.

Analysis
Summary

judgment

is

appropriate

if

the

pleadings,

depositions, answers to interrogatories, and admissions on
file, together with any affidavits, show that there is no
genuine dispute of material fact and that the movant is
entitled to judgment as a matter of law.

Fed. R. Civ. P.

56(a). As stated in Blumel v. Mylander, 919 F. Supp. 423, 428
(M.D. Fla. 1996), Rule 56 “implies [that] district courts
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should not grant summary judgment until the non-movant has
had an adequate opportunity for discovery.”

Furthermore, the

Eleventh Circuit has determined that “summary judgment may
only be decided upon an adequate record.” Snook v. Trust Co.
of Ga. Bank, 859 F.2d 865, 870 (11th Cir. 1988).
The Eleventh Circuit expounded:
[S]ummary judgment should not be granted until the
party opposing the motion has had an adequate
opportunity for discovery.
The party opposing a
motion for summary judgment has a right to
challenge
the
affidavits
and
other
factual
materials submitted in support of the motion by
conducting sufficient discovery so as to enable him
to determine whether he can furnish opposing
affidavits.
If the documents or other discovery
sought would be relevant to the issues presented by
the motion for summary judgment, the opposing party
should be allowed the opportunity to utilize the
discovery process to gain access to the requested
materials.
Generally
summary
judgment
is
inappropriate when the party opposing the motion
has been unable to obtain responses to his
discovery requests.
Id. at 870 (internal citations omitted).
Plaintiffs insist that they have not had a meaningful
opportunity to develop the facts through discovery. In their
response, they note that “no depositions ha[d] taken place”
at that time. (Doc. # 40 at 3). Additionally, Plaintiffs
emphasize

that

interrogatories

Bank

of

served

America
in

many

has
of

objected
the

to

the

factually

indistinguishable cases pending in this Court, such that the

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plaintiffs in another case have filed a motion to compel
better responses. According to Plaintiffs, their “discovery
requests are not being served until the [other] court issues
its rulings on [Bank of America’s] objections.” (Id.). And,
the Court recently extended the discovery deadline by two
weeks at Plaintiffs’ request. (Doc. # 45).
Upon due consideration, the Court determines that Bank
of America’s Motion for Summary Judgment should be denied as
premature so that Plaintiffs will have adequate time for
discovery. “If the Court were to rule on the merits of [Bank
of

America’s]

motion,

such

ruling

would

frustrate

the

[Plaintiffs’] right to factually investigate.” Blumel, 919 F.
Supp. at 429. Bank of America may file another motion for
summary judgment after the close of discovery. See Royal Oak
Enters., LLC v. Nature’s Grilling Prods., No. 1:10-cv-2494JEC, 2011 U.S. Dist. LEXIS 133856, at *9 (N.D. Ga. Nov. 21,
2011)(“Depending on the evidence that is developed during
discovery, defendant may ultimately prevail on its motion for
summary judgment. However, at this stage in the litigation,
the motion is clearly premature.”).
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:

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(1)

Defendant Bank of America, N.A.’s Motion for Summary
Judgment (Doc. # 39) is DENIED as premature.

(2)

Bank of America may file another motion for summary
judgment after the close of discovery.
DONE and ORDERED in Chambers, in Tampa, Florida, this

2nd day of August, 2018.

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