Gomes v. Bank of America, N.A. et al
Filing
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ORDER DENYING MOTION TO DISMISS NEGLIGENCE CLAIM IN FIRST AMENDED COMPLAINT re 22 ; 28 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/24/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electro nic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LEONARD GOMES, JR.,
)
)
Plaintiff,
)
)
vs.
)
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BANK OF AMERICA, N.A.; BAC
)
HOME LOANS SERVICING, LP;
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JOHN AND MARY DOES 1-10,
)
)
Defendants.
)
_____________________________ )
Civ. No. 12-00311 SOM/BMK
ORDER DENYING MOTION TO
DISMISS NEGLIGENCE CLAIM IN
FIRST AMENDED COMPLAINT
ORDER DENYING MOTION TO DISMISS
NEGLIGENCE CLAIM IN FIRST AMENDED COMPLAINT
This removed action arises out of an attempt by
Plaintiff Leonard Gomes, Jr., to obtain a modification of a
$654,500 loan.
Gomes has alleged, among other things, that
Defendants are liable for negligence in the handling of his loan
modification application.
Defendants seek dismissal of Gomes’s negligence claim,
arguing that Gomes has insufficiently pled damages relating to
the alleged negligence.
This court, determining that damages are
sufficiently pled, denies the motion.
I.
BACKGROUND.
Gomes’s loan originated with National Bank of Kansas
City.
This loan was apparently assigned to Countrywide Home
Loan, Inc.
Defendant Bank of America, N.A., is Countrywide’s
successor in interest.
No. 1-2.
See Notice of Removal, June 1, 2012, ECF
Gomes alleges that his loan was serviced by Countrywide
Home Loans Servicing LP, which has become Defendant BAC Home
Loans Servicing, LP.
Id.
The original Complaint asserted causes
of action for negligence and unfair and deceptive acts in
violation of section 480-2 of Hawaii Revised Statutes.
Id.
As detailed in Judge David Alan Ezra’s order of July
25, 2012, Gomes attempted numerous times to obtain a loan
modification, only to be told that his loan needed to be in
default before it could be modified.1
Gomes says that, in August
2009, he decided to stop paying his mortgage so that he would
qualify for a loan modification.
He continued to seek a loan
modification, allegedly receiving repeated requests from the
lender that he resubmit application materials.
Gomes says that
eventually, on January 20, 2010, he was told by a BAC Servicing
employee named James that he would be approved for a Home
Affordable Modification Program (“HAMP”) loan modification once
Gomes submitted documents supporting the financial information
Gomes had given to James.
See Order: (1) Granting in Part and
Denying in Part Defendant’s Motion to Dismiss and (2) Granting
Plaintiff Leave to Amend, ECF No. 14.
It appears that, on July 31, 2010, Gomes’s loan was
assigned to nonparty Deutsche Bank National Trust Company, as
1
This case was reassigned to this judge when Judge Ezra took
senior status. See ECF No. 17.
2
Trustee of BCAP LLC Trust 2007-AA4.
See First Amended Complaint
¶ 6.
In adjudicating an earlier motion to dismiss, ECF No.
4, Judge Ezra ruled that Plaintiffs had sufficiently alleged a
section 480-2 claim.
With respect to the negligence claim, Judge
Ezra noted that lenders and loan servicers generally owe
borrowers no duty of care giving rise to any negligence claim.
However, Judge Ezra ruled that, because Gomes alleged that a BAC
Servicing employee named James had told Gomes that Gomes would be
approved for a loan modification, Gomes had to be seen as
claiming that BAC Servicing had exceeded its role as a
conventional loan servicer.
Judge Ezra ruled that Gomes had
alleged sufficient facts to support a claim that BAC Servicing
owed a duty to Gomes to process his loan modification application
and breached this duty by not actually doing so.
Judge Ezra
nevertheless dismissed the negligence claim asserted in the
Complaint, concluding that allegations of damage caused by the
breach were insufficient.
Judge Ezra reasoned that the damages
alleged in the Complaint flowed from Gomes’s earlier failure to
pay his mortgage, rather than from BAC Servicing’s alleged
statement to Gomes on January 20, 2010, that his loan
modification request would be approved when Gomes submitted
certain financial documents.
an amended complaint.
Judge Ezra gave Gomes leave to file
See ECF No. 14.
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On August 8, 2012, Gomes filed a First Amended
Complaint.
This document added factual allegations concerning
Gomes’s alleged damages.
In the original Complaint, Gomes had
merely alleged that his credit score had been damaged and that he
might have sold his property but for being told he qualified for
a HAMP loan modification.
2.
See Complaint ¶¶ 95 and 97, ECF No. 1-
In the First Amended Complaint, Gomes additionally alleges
that, because of the bad marks on his credit report, Gomes had to
provide a $20,000 security deposit and $100,000 mortgage on
behalf of his construction company.
¶ 103.
See First Amended Complaint
He says he also paid a higher interest rate on a loan he
obtained for a truck purchase as a result of his allegedly
damaged credit score.
Id. ¶ 104.
On August 21, 2012, Defendants filed the present motion
to dismiss.
See ECF No. 22.
Defendants contend that Gomes has
still failed to allege facts concerning damages caused by the
alleged breached of duty.
Because Gomes has sufficiently alleged
damages caused by the alleged breach of duty, the motion to
dismiss the negligence claim is denied.
II.
STANDARD.
Judge Ezra set forth the applicable standard in his
order of July 25, 2012.
That standard is incorporated herein by
reference.
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III.
ANALYSIS.
The factual background for this case was set forth in
Judge Ezra’s order of July 25, 2012.
For the most part, the
allegations in the First Amended Complaint track the earlier
Complaint.
The only relevant new allegations concern damages.
In the First Amended Complaint, Gomes alleges that, because of
the bad marks on his credit report, he had to provide a $20,000
security deposit and $100,000 mortgage on behalf of his
construction company.
See First Amended Complaint ¶ 103.
He
also alleges that he had to pay a higher interest rate on a loan
he obtained for a truck purchase as a result of his allegedly
damaged credit score.
Id. ¶ 104.
Accepting these allegations as
true and reading them liberally, the court views Gomes as
alleging that he suffered damages flowing at least in part from
the purported representation on January 20, 2010, that he would
qualify for a HAMP loan modification.
Defendants’ motion does not seek reconsideration of
Judge Ezra’s ruling that Gomes alleges a duty and breach of duty.
It instead limits its argument to the causation and damage prongs
of a negligence claim.
Defendants argue that Gomes’s new
allegations concerning damages flow entirely from Gomes’s
default, rather than from the statement of January 20, 2010.
Defendants argue that, but for Gomes’s failure to pay, there
would be no black mark on Gomes’s credit report.
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Defendants also
argue that Gomes would have suffered the damages anyway, as his
credit report, which he attaches to the First Amended Complaint,
indicates that Gomes had other delinquent accounts.
These
arguments go to the likelihood that damages flowed from the
statement of January 20, 2010, or to the extent of such damages,
but do not establish as a matter of law that Gomes sustained no
damages from the statement.
Even if the damages originally
flowed from Gomes’s default, they may have been aggravated or
extended by the alleged statement.
The First Amended Complaint
sufficiently alleges damages caused by BAC Servicing’s
negligence.
See Fed’n of African Am. Contractors v. City of
Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996).
That is, the First
Amended Complaint can be read as alleging that Gomes suffered
damage to his credit score as a result of the representation of
January 2010, and that the credit score led to financial harm.
The motion to dismiss, which contends that the alleged damage to
Gomes’s credit score necessarily flowed from the intentional
default of August 2009, is therefore denied.
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IV.
CONCLUSION.
For the foregoing reasons, Defendants’ motion to
dismiss the negligence count is denied.
IT IS SO ORDERED.
DATED: Honolulu, October 24, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District
Judge
Leonard Gomes, Jr. v. Bank of America, et al., Civ No. 12-00311 SOM/BMK; ORDER DENYING
MOTION TO DISMISS NEGLIGENCE CLAIM IN FIRST AMENDED COMPLAINT
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