Peralta et al v. Bank of America, N.A.
Filing
38
ORDER permitting Gabino C. Peralta and Arely M. Ramirez to amend the complaint a final time and NO LATER THAN MAY 25, 2018. Signed by Judge Steven D. Merryday on 5/18/2018. (GSO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GABINO C. PERALTA
and ARELY M. RAMIREZ,
Plaintiffs,
v.
CASE NO. 8:17-cv-2580-T-23MAP
BANK OF AMERICA, N.A.,
Defendant.
____________________________________/
ORDER
A decade ago, the Treasury Department introduced the Home Affordable
Modification Program, which allegedly requires a participating bank to use
“reasonable efforts” to modify the mortgage of a person in default or reasonably
likely to default.1 After an eligible mortgagor applies for a modification, the program
requires several “trial payments” before the bank approves the modification.
In June 2017, Gabino Peralta and Arely Ramirez and 117 other plaintiffs sued
Bank of America in a single action.2 Case no. 8:17-cv-1534-RAL (M.D. Fla. June 27,
1
Bank of America disputes that a “reasonably foreseeable” likelihood of default qualifies a
mortgagor for a modification and contends that a modification requires either delinquency or an
“imminent default.”
2
In October 2016, several dozen plaintiffs (but not the Peralta and Ramirez) sued Bank of
America in a single action in the Circuit Court for Hillsborough County, and the bank invoked
diversity jurisdiction and removed the action. Case no. 8:16-cv-3384-SCB (M.D. Fla. Dec. 12, 2016).
Moving to dismiss the action, Bank of America argued misjoinder of the plaintiffs’ claims, failure to
plead fraud with particularity, failure to state a claim, expiration of the four-year limitation, and the
absence of a private right to sue a bank for violating the requirements of the Home Affordable
(continued...)
2017). The 292-page “shotgun” complaint, which copied swaths from a qui tam
complaint in the Eastern District of New York,3 alleged fraud and the violation of
Florida’s Deceptive and Unfair Trade Practices Act. In the part of the complaint
specific to them, Peralta and Ramirez alleged that in January 2011 a Bank of
America employee, “Angela,” told them that a modification requires a default.
(Doc. 1 at ¶ 521 in case no. 17-cv-1534) Bank of America allegedly omitted to
mention that a reasonably foreseeable likelihood of default might qualify a mortgagor
for a modification. Moving to dismiss the complaint, Bank of America argued
misjoinder of the plaintiffs’ claims, failure to plead fraud with particularity, failure to
state a claim, expiration of the four-year limitation, and the absence of a private right
to sue a bank for violating the requirements of the Home Affordable Modification
Program.
Before resolving the motion to dismiss, the presiding judge observed that the
complaint, which alleged neither each plaintiff’s citizenship nor the amount in
controversy between each plaintiff and Bank of America, failed to invoke diversity
jurisdiction. (Doc. 15 in case no. 17-cv-1534) Ordered to amend the complaint to
invoke diversity jurisdiction, the plaintiffs submitted a 403-page complaint. (Doc. 16
in case no. 17-cv-1534) For the second time, Bank of America moved to dismiss the
2
(...continued)
Modification Program. Before the presiding judge resolved the motion to dismiss, the plaintiffs
voluntarily dismissed the action.
3
United States ex rel. Gregory Mackler v. Bank of America, N.A., Case no. 1:11-cv-3270-SLT
(E.D.N.Y. July 7, 2011).
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complaint and repeated the arguments from the earlier motion. The presiding judge
in that action found misjoinder, severed the plaintiffs’ claims, and ordered the
plaintiffs to sue separately.
The plaintiffs heeded the presiding judge’s command. Between October 30,
2017, and November 3, 2017, more than a hundred plaintiffs sued Bank of America
in the Middle District of Florida in eighty actions and alleged fraud under Florida
common law. Excepting names, dates, addresses, and the like, the complaints are
identical. The actions are distributed among eight district judges in the Middle
District of Florida. In two actions, the presiding judges found the claims barred by
the four-year limitation.4
In Peralta and Ramirez’s third complaint (but the first complaint in this case),
Peralta and Ramirez allege (Doc. 1) four misrepresentations by Bank of America.
First, Bank of America allegedly failed to mention that a reasonably foreseeable
danger of default might qualify a mortgagor for a modification; second, Bank of
America stated that the mortgagors failed to provide Bank of America with the
documents necessary to complete the modification; third, Bank of America orally
notified the mortgagors that the bank approved the requested modification; and
fourth, Bank of America charged a “fraudulent” inspection fee. For the third time,
Bank of America moved (Doc. 9) to dismiss the complaint. Peralta and Ramirez
4
Torres v. Bank of America, N.A., 2018 WL 573406 (M.D. Fla. Jan. 26, 2018) (Lazzara, J.),
appeal filed (Case no. 18-10698); Paredes v. Bank of America, N.A., 2018 WL 1071922 (M.D. Fla. Feb.
27, 2018) (Chappell, J), appeal filed (Case no. 18-11337).
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have not — in any motion, pleading, or other paper — moved at any moment in this
action for leave to amend the complaint.
A February 1, 2018 order (Doc. 17) dismisses each fraud claim except the
claim that Bank of America omitted to mention that a reasonably foreseeable
likelihood of default might qualify a mortgagor for a modification. In this claim,
Peralta and Ramirez allege that Bank of America instructed them on January 5,
2011, to “refrain from making their regular mortgage payments” in order to qualify
for a modification. (Doc. 1 at ¶ 37) Bank of America allegedly omitted to mention
that a reasonably foreseeable likelihood of default can qualify a mortgagor for a
modification. (Doc. 1 at ¶ 37) Confusingly, Peralta and Ramirez allege elsewhere in
the complaint that a modification requires not a reasonably foreseeable likelihood of
default but rather an “eminent [sic] default.” (Doc. 1 at ¶ 38) In either event,
unaware of their option not to default, Peralta and Ramirez allegedly “refrained
from” paying their mortgage and, as a result, “fell into default status.” (Doc. 1
at ¶ 39) As a “direct result” of Bank of America’s alleged omission, Peralta and
Ramirez allegedly suffered the loss of both their home and the equity in their home.
(Doc. 1 at ¶ 39)
Moving (Doc. 30) for summary judgment, Bank of America observes that the
plaintiffs defaulted in October 2007, three years before Bank of America’s alleged
omission. In an affidavit that accompanies their response, Arely Ramirez affirms
that she defaulted on the mortgage “due in part to the state of the economy and my
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own personal financial obligations.” (Doc. 33 at 6) Two paragraphs later, Ramirez
swears that, when she called Bank of America on January 5, 2011, she “was capable
of and intended to start making my mortgage payments.” (Doc. 33 at 6) Ramirez
affirms that Bank of America advised her not to cure the default and that she suffered
a foreclosure after relying on Bank of America’s advice. (Doc. 33 at 7) Bank of
America objects to the plaintiffs’ maintaining two putatively irreconcilable sets of
factual assertions (that is, “I was not in default” and “I was in default”) and argues
that the plaintiffs cannot in effect amend their complaint by responding to a motion
for summary judgment with facts that conflict with the allegations in the complaint.
Bank of America argues that the record reveals no genuine dispute of material fact
about the fraud claim alleged in the complaint.
As Bank of America correctly observes, the fraud claim in the complaint
appears to conflict irreconcilably with the argument in the response to Bank of
America’s motion for summary judgment. In the complaint, the plaintiffs allege:
Relying on the false statement and omission, [Peralta and Ramirez]
refrained from making their regular mortgage payment and fell into
default status.
(Doc. 1 at ¶ 39) In the response to Bank of America’s motion for summary
judgment, the plaintiffs argue:
The fact that [Peralta and Ramirez] were in default at the time of the
phone call is irrelevant because it was [Bank of America’s] statements
that stopped [Peralta and Ramirez] from getting out of default.
(Doc. 33 at 3) In other words, in responding to the motion for summary judgment
the plaintiffs tacitly concede that they defaulted before the January 5, 2011 omission
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and assert a new theory — that they “intended” to cure the default but that Bank of
America’s omission misled them into permitting the default to persist.
For more than a year, Peralta and Ramirez have evaded Bank of America’s
repeated efforts to confront the merits of the fraud claim. Responding to a motion
for summary judgment that refutes the fraud claim in the complaint, the plaintiffs
attempt to prolong this litigation by asserting a new and different theory. Although
the protracted history of this litigation suggests an unwillingness or an inability by
the plaintiffs to articulate specifically the perceived wrong, Peralta and Ramirez may
amend the complaint a final time and no later than MAY 25, 2018, to allege a fraud
claim based on Bank of America’s misrepresentation of the eligibility requirement for
a modification. The fraud theory alleged in the complaint — or in the amended
complaint if Peralta and Ramirez elect to amend the complaint — will control the
balance of this litigation. Also, if Peralta and Ramirez elect to amend the
complaint, the amendment must (1) clarify whether a modification requires an
“imminent” danger of default or a “reasonably foreseeable” likelihood of default and
(2) must cite the statute, regulation, rule, or other authority that establishes the
eligibility requirement for a modification under the Home Affordable Modification
Program. If the third amended complaint fails to state a claim or fails to plead fraud
with particularity in accord with Rule 9(b), Federal Rules of Civil Procedure, the
plaintiffs may not submit a fourth amended complaint. If the plaintiffs elect not to
amend the complaint or fail to timely amend the complaint, a further order will
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promptly determine whether Bank of America’s motion shows the absence of a
factual dispute about the fraud claim alleged in the November 1, 2017 complaint.
(Doc. 1)
After Bank of America moved to dismiss this action and the other eighteen
actions on this docket,5 the plaintiff’s counsel submitted an identical response in
every action. In each action in which Bank of America moved for summary
judgment, the plaintiff’s counsel submitted an identical response. An affidavit from
each plaintiff accompanies each response, and excepting names, dates, and addresses
the affidavits appear identical. As evidenced by Rule 9(b)’s particularity requirement,
litigating a fraud claim requires careful attention to the details of each action. If the
plaintiffs elect to amend the complaint, the plaintiff’s counsel must tailor each
complaint to the facts of each action and must not submit another boilerplate
complaint.
ORDERED in Tampa, Florida, on May 18, 2018.
5
Gonzalez, 5:17-cv-519-SDM; Varela-Pietri, 8:17-cv-2534-SDM; Salazar, 8:17-cv-2535-SDM;
Diaz, 8:17-cv-2537-SDM; Rostgaard, 8:17-cv-2538-SDM; Mosquea, 8:17-cv-2551-SDM; Peralta,
8:17-cv-2580-SDM; Rodriguez, 8:17-cv-2583-SDM; Ruiz, 8:17-cv-2586-SDM; Santos,
8:17-cv-2588-SDM; Acosta, 8:17-cv-2592-SDM; Blanco, 8:17-cv-2593-SDM; Garcia,
8:17-cv-2602-SDM; Zalazar, 8:17-cv-2603-SDM; Perez, 8:17-cv-2623-SDM; Moncada,
8:17-cv-2625-SDM; Espinel, 8:17-cv-2628-SDM; Ocampo, 8:17-cv-2631-SDM; Carmenates,
8:17-cv-2635-SDM.
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