BECK et al v. BANK OF AMERICA HOME LOANS

Filing 22

ORDER granting 15 Motion to Dismiss for Failure to State a Claim; denying 20 Motion for Summary Judgment as moot. Ordered by US DISTRICT JUDGE CLAY D LAND on 06/21/2016. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
CHARLES W. BECK and ANNETTE S.
BECK,

*
*

Plaintiffs,
*
vs.

CASE NO. 3:16-CV-2 (CDL)
*

BANK OF AMERICA HOME LOANS,
*
Defendant.
*
O R D E R
Plaintiffs Charles and Annette Beck, who are proceeding pro
se, filed this action against “Bank of America Home Loans,”
(“the Bank”) which serviced the Becks’ home loan until October
2015.1

The Bank filed a motion to dismiss (ECF No. 15).

For the

reasons set forth below, that motion is granted. The Becks’
summary judgment motion (ECF No. 20) is denied as moot.
MOTION TO DISMISS STANDARD
“To survive a motion to dismiss” under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
1

The complaint must include sufficient factual

Bank of America, N.A. responded on behalf of “Bank of
Loans,” asserting that “‘Bank of America Home Loans’ .
known entity” and assuming that the Becks intended to
America, N.A. instead. Def.’s Mot. to Dismiss 1 n.1, ECF

America Home
. . is not a
name Bank of
No. 15.

allegations “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.

In other words, the factual

allegations must “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims.

Id. at 556.

“Rule

well-pleaded

12(b)(6)

does

not

permit

dismissal

of

a

complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable.’” Watts v. Fla. Int’l Univ.,
495 Fn.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 556).
The Becks attached a number of documents, including a copy
of public records regarding the assignment of their security
deed, to their response brief and to their summary judgment
motion.

The Bank attached to its motion to dismiss a copy of a

public record regarding the assignment of the Becks’ security
deed.

“In ruling upon a motion to dismiss, the district court

may consider an extrinsic document if it is (1) central to the
plaintiff's claim, and (2) its authenticity is not challenged.”
SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337
(11th Cir. 2010).

Neither side challenged the authenticity of

the assignment documents, which are central to at least some of
the Becks’ claims.
FACTUAL ALLEGATIONS
The Court reviewed the allegations in the Becks’ pro se
Complaint, “Memorandum Opinion,” summary judgment motion, and

2

responses to the Bank’s Motion to Dismiss.

The precise details

of the transactions are not entirely clear, but the basic gist
of

the

Becks’

Complaint

appears

to

be

that

the

Becks

were

permitted to take out a home loan larger than they could afford,
were unable to keep up with their loan payments, and were unable
to secure a loan modification on terms they could afford.
The Becks allege that when they applied for a home loan
from Countrywide Home Loans, Inc. in 2006, Countrywide falsified
Plaintiffs’ income information and approved a loan that was too
large for Plaintiffs to repay.

Compl. ¶ 4, ECF No. 1; id.

Attach. 1, Mem. in Supp. of Compl. 2-3, ECF No. 1-1.

The Becks

executed a security deed to Mortgage Registration System, Inc.
as Nominee for Countrywide Home Loans, Inc.

Mem. in Supp. of

Compl. 2; Pls.’ Resp. to Mot. to Dismiss Ex. D, 9-21, Security
Deed, ECF No. 18-4.

The security deed was assigned to the Bank,

and the Bank began servicing the loan.
2.

Mem. in Supp. of Compl.

The Becks maintain that the loan payment was too high for

their income.
On several occasions, the Becks sought a loan modification
from the Bank.

In 2012, the Bank qualified the Becks for a loan

modification.

Pls.’ Resp. to Mot. to Dismiss 2, ECF No. 18;

Pls.’ Mot. for Summ. J. Ex. E, Loan Modification Trial Period
Plan, ECF No. 20-5.

The Becks assert that the proposed loan

modification payments were too high for their income.

3

At some

point

in

2015,

the

Bank

apparently

proceedings against the Becks.

initiated

foreclosure

Pls.’ Mot. for Summ. J. Ex. A,

Notice of Sale Under Power, ECF No. 20-1 at 5.

There is no

allegation that a foreclosure sale has taken place.
In October 2015, the Becks’ security deed was assigned to
Federal National Mortgage Association (“Fannie Mae”).

Def.’s

Mot. to Dismiss Ex. A, Assignment of Security Deed, ECF No. 151; accord Pls.’ Mot. for Summ. J. Ex. D, Assignment of Security
Deed

1,

ECF

No.

20-4.

And,

as

the

Becks

acknowledge,

the

servicing of their loan transferred from the Bank to Seterus,
Inc. in October 2015.
DISCUSSION
The

Bank

contends

that

the

Becks’

Complaint

dismissed as an impermissible shotgun pleading.

should

be

It is a bit

difficult to discern what claims the Becks are attempting to
assert against the Bank.
together, Plaintiffs’

But it is not impossible.

pro se

Taken

Complaint, “Memorandum Opinion,”

summary judgment motion, and responses to the Bank’s Motion to
Dismiss reveal the hazy contours of the Becks’ claims.

The

Court will therefore evaluate the claims.
The
income

Becks

contend

information

on

that
their

Countrywide
loan

falsified

application

so

the

Becks’

they

would

qualify for a loan that was larger than they could afford.

The

Becks further contend that the Bank refused to grant them a loan

4

modification that they could afford.

And the Becks appear to

assert that the assignments of the security deed were invalid.
They invoke three statutes: 12 U.S.C. § 2605; 18 U.S.C. § 1014;
and 18 U.S.C. § 1028.

They seek damages, a declaration that

neither the Bank nor Fannie Mae is authorized to foreclose on
the property, and an injunction enjoining the Bank from “naming
a

substitute

trustee”

or

initiating

foreclosure

proceedings.

The Court addresses each issue in turn.
I.

Claims Under 12 U.S.C. § 2605
The Becks invoke 12 U.S.C. § 2605, which is a provision of

the

Real

Estate

Settlement

Procedures

Act

(“RESPA”)

that

requires certain disclosures to residential mortgage borrowers.
Based on the Court’s review of the Becks’ filings, the Becks did
not allege any facts to support a RESPA claim.

They did not

allege facts to suggest that the Bank failed to inform them of a
transfer of the servicing of the loan, and they did not allege
any facts to suggest that the Bank failed to provide an adequate
response to a qualified written request.

Therefore, the Becks

do not state a claim under RESPA.
II.

Claims Under 18 U.S.C. §§ 1014 & 1028
The

Becks

also

18 U.S.C. § 1028.
prohibits
property

making
for

the

invoke

18

U.S.C. § 1014

Both are criminal statutes.
a

false
purpose

statement
of

regarding

influencing

5

and

Section 1014
the

certain

value

of

entities,

including

mortgage

lenders.
and

Section

possession

1028

of

prohibits

the

false

identification

production,

transfer,

documents.

Even if the Becks had alleged facts to support a

conclusion that the Bank had violated these statutes—which they
did not—neither statute provides a private right of action.

See

Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960) (“The
sections of Title 18 may be disregarded in this suit. They are
criminal in nature and provide no civil remedies.”); see also
Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979) (noting that
criminal statutes are rarely read to imply a private right of
action and that a private right of action is only implied if
there is a statutory basis for inferring that Congress intended
to create a private right of action).

Therefore, the Becks do

not state a claim under 18 U.S.C. §§ 1014 and 1028.
III. Mortgage Fraud Claim
The Becks contend that the Bank committed “mortgage fraud,”
which they also refer to as a “predatory lending” claim.

They

assert that an employee of their loan originator, Countrywide,
falsely stated the Becks’ income in their loan application so
that the Becks would be approved for a home loan they could not
afford.

The Becks did not make any clear allegations explaining

why the Bank should be liable for Countrywide’s alleged actions
during

the

speculate

on

loan
this

origination
point.

process,

Even

6

if

and

the

the

Becks

Court
had

cannot

made

such

allegations, they did not point the Court to a legal basis for
their mortgage fraud claim.
The Court recognizes that residential mortgage fraud is a
crime under Georgia law.

O.C.G.A. § 16-8-102.

That statute

prohibits deliberate misstatements during the mortgage lending
process.

It also prohibits the filing of documents that contain

deliberate misstatements with the county registrar.

But the

residential mortgage fraud statute does not create a private
right of action for mortgage fraud.

See, e.g., Jenkins v. BAC

Home Loan Servicing, LP, 822 F. Supp. 2d 1369, 1380-81 (M.D. Ga.
2011) (collecting cases finding no private right of action under
O.C.G.A. § 16-8-102).

So, if the Becks are attempting to bring

their mortgage fraud claim under Georgia’s residential mortgage
fraud statute, their claim must be dismissed.
To the extent the Becks are attempting to assert a common
law fraud claim under Georgia law, they have not alleged facts
to

support

the

elements

of

such

a

claim.

“The

essential

elements of a fraud claim are: ‘(1) false representations made
by

the

(3) made

defendant,
with

(4) justifiable

(2)
an

and

which

the

defendant

knew

intent

to

deceive

the

detrimental

reliance

by

the

were

false,

plaintiff,
plaintiff

on

such representations, and (5) damages suffered by the plaintiff
as a result.’” Vernon v. Assurance Forensic Accounting, LLC, 333
Ga. App. 377, 390, 774 S.E.2d 197, 209 (2015) (quoting Chiaka v.

7

Rawles, 240 Ga. App. 792, 794–795(2), 525 S.E.2d 162, 164-65
(1999)).

What the Becks allege is that Countrywide’s mortgage

loan interviewer inaccurately stated the Becks’ gross monthly
income on the Becks’ loan application to Countrywide and that
Countrywide approved the loan.

There is no allegation of a

false representation the Bank intentionally made to the Becks
with the intent to deceive them, and there is no allegation that
the

Becks

justifiably

and

detrimentally

representation from the Bank.

relied

on

any

false

Thus, to the extent the Becks are

attempting to assert a common law fraud claim under Georgia law,
their claim must be dismissed.
The Court notes that the Becks summarily allege that the
Bank “imposed unfair and abusive loan terms on the Becks.”
in Supp. of Compl. 2.

Mem.

The Becks did not elucidate which loan

terms they contend are unfair and abusive.

They do allege that

the Bank charged them “high interest,” along with late fees and
penalties. Id. at 3.
suggesting
Georgia

that

law.

The Becks did not point to any authority

their
Cf.

7.375%

annual

interest

rate

violates

O.C.G.A. §

7-4-18

(criminalizing

usurious

interest rates “greater than 5 percent per month”).

They do not

allege that the fees charged by the Bank were not permitted by
the loan documents, and they do not allege that the Bank charged
them fees that violate Georgia law.

Cf. O.C.G.A. § 7-6A-3(3)

(setting limits on late payment charges).

8

In sum, the Becks’

conclusory allegations regarding “unfair and abusive terms” do
not state a claim for relief.
IV.

Failure to Modify Loan Claim
The Becks assert that the Bank rebuffed their efforts for

assistance
(“HAMP”).

under

the

There

is

Home
no

Affordability

private

right

Modification

of

action

Program

under

HAMP.

Miller v. Chase Home Fin., LLC, 677 F.3d 1113, 1116 (11th Cir.
2012)

(per

determined

curiam).
that

And

homeowners

“[t]he
are

majority

incidental

of

courts

have

beneficiaries,

not

intended beneficiaries, of the contract between a participating
servicer and the federal government to participate in the HAMP
program.” Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366,
1374

(N.D.

Ga.

2012).

The

Becks

did

not

make

any

factual

allegations to suggest that they are intended beneficiaries of a
contract under HAMP.

Therefore, to the extent the Becks are

attempting to assert a claim under HAMP, this claim fails.
V.

Assignment of the Deed
Finally,

Plaintiffs

contend

that

the

assignments

of

the

security deed, including the most recent assignment to Fannie
Mae, are invalid.
initiation

of

They ask the Court to conclude that the

non-judicial

foreclosure

proceedings

wrongful because the assignments were flawed.

would

be

But under Georgia

law, a debtor does not have standing to challenge the assignment
of a security deed unless (1) the deed or the assignment grants

9

the debtor some basis for disputing the assignment or (2) the
assignment
debtor.
620-21

violated

a

protection

and

injured

the

Ames v. JP Morgan Chase Bank, N.A., 783 S.E.2d 614,
(Ga.

2016).

The

exception is met here.
takes

statutory

the

position

security deed.

Becks

do

not

suggest

that

either

Furthermore, it is clear that the Bank

that

it

has

no

further

interest

in

the

See id. at 621 (noting that debtors “cannot

manufacture standing for themselves by asserting a claim that
the party with standing has not asserted”).
the

alleged

invalidity

of

the

assignments

Any claims based on
must

therefore

be

dismissed.
CONCLUSION
As discussed above, the Becks’ Complaint fails to state a
claim.

The Bank’s motion to dismiss (ECF No. 15) is granted,

and the Becks’ summary judgment motion (ECF No. 20) is denied as
moot.

IT IS SO ORDERED, this 21st day of June, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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