Johnson et al v. Bank of America, N.A. et al
Filing
99
MEMORANDUM DECISION AND ORDER granting 61 Motion to Dismiss; granting 62 Motion to Dismiss with respect to all claims, with the exception of the following three: Count 10 (TILA Violations); Count 11 (Breach of Contract); and Count 13 (RESPA Viol ations). In the event the parties wish to pursuethese remaining claims through a motion for summary judgment, they are directed to file, within 45 days of the date of this Order, their respective summary judgment motions and accompanying memoranda in accordance with the local rules.. Signed by Judge Dee V Benson. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CURTIS W. JOHNSON and CAROL Z.
JOHNSON, Husband and Wife,
Plaintiffs,
Case No. 1:11-CV-42-S-DVB
MEMORANDUM DECISION AND
ORDER
v.
BANK OF AMERICA, N.A.; BAC
HOME LOANS SERVICING, LP;
BANK OF AMERICA
CORPORATION; CAPITAL ONE,
N.A.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.;
GREENPOINT MORTGAGE
FUNDING, INC.; SUN VALLEY
TITLE CO.; JOHN DOES 1-100; and
CORPORATIONS A-Z, inclusive, and
all persons claiming any legal or
equitable right, title, estate, lien, or
interest in the following parcel of real
property in Blaine County, Idaho,
described as Lot 2 of GOLDEN EAGLE
RANCH SUBDIVISION, BLAINE
COUNTY, IDAHO, as shown on the
official plat thereof, recorded January 2,
1997 as Instrument No. 397902, and
corrected by Surveyor’s Affidavit
recorded January 8, 1997, as Instrument
No. 398090, records of Blaine County,
Idaho,
Defendants.
This matter is before the court on defendants’ motions to dismiss plaintiffs’ Third
Amended Complaint. (Dkt. Nos. 61 & 62.) Following supplemental briefing by the parties, the
Memorandum Decision and Order - 1
court heard oral argument on the motions to dismiss on August 23, 2013. At the hearing,
plaintiffs were represented by Benjamin W. Worst. Defendants1 were represented by Kelly
Greene McConnell. At the conclusion of the hearing, the court took the matter under
advisement. Since then, the court has further considered the law and facts relating to the motion.
Now being fully advised, the court enters this Memorandum Decision and Order.
BACKGROUND
In June of 2005, plaintiffs obtained a loan from defendants in the amount of $1,963,500
to refinance the debt against their property in Blaine County, Idaho. Plaintiffs continued to make
payments on this loan until approximately January 2009, at which time plaintiffs stopped making
payments and attempted to secure a loan modification. Plaintiffs filed the present lawsuit against
the defendants in early 2011, alleging generally that the plaintiffs’ failure to honor the loan is the
result of defendants’ representations regarding ownership, servicing and modification of the
loan.
On November 16, 2011, plaintiffs filed a Third Amended Complaint setting forth
fourteen causes of action against the various defendants. (Dkt. No. 60.)2 The defendants
1
Bank of America, N.A. (individually and as successor by merger to BAC Home Loans
Servicing, LP), Mortgage Electronic Registration Systems, Inc. (“MERS”), Capital One, N.A.,
GreenPoint Mortgage Funding, Inc., and Sun Valley Title Co., are collectively referred to as
“defendants.”
2
On June 20, 2011, this court entered an Order granting, in part, defendants’ motions to dismiss
the First Amended Complaint. (Dkt. No. 36.) Plaintiffs were given leave to amend and filed a
Second Amended Complaint. The defendants once again moved to dismiss. However, prior to
the court’s ruling on defendants’ motions to dismiss the Second Amended Complaint, the
plaintiffs filed a Third Amended Complaint, which is the subject of the present motion.
Memorandum Decision and Order - 2
responded by filing motions to dismiss the Third Amended Complaint pursuant to Rule 12(b) of
the Federal Rules of Civil Procedure.3
DISCUSSION
After various rounds of briefing and oral arguments before the court, the plaintiffs have
abandoned many of the causes of action set forth in the Third Amended Complaint. Through
briefing and oral argument, plaintiffs have conceded that their claims are limited to the
following: Count Five – Fraud; Count Ten – Truth in Lending Act (TILA) Violations; Count
Eleven – Breach of Contract; and Count Thirteen – Real Estate Settlement Procedures Act
(RESPA) Violations.
With regard to Count Five – plaintiffs’ cause of action alleging fraud – the court finds
defendants’ arguments are well taken. Fraud claims are held to the heightened pleading standard
of Federal Rule of Civil Procedure 9(b), which requires particular averments regarding each
defendant’s participation in the alleged fraudulent scheme. Semegen v. Weidner, 780 F.2d 727,
731 (9th Cir. 1981). Failure to plead allegations of fraud with the required factual specificity
provides a sufficient basis for dismissal. Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1108 (9th
Cir. 2003). Because plaintiffs’ claims alleging fraud fail to satisfy these pleading requirements,
plaintiffs’ fraud claims are dismissed.
3
The defendants were initially represented by separate counsel. Defendants Capital One N.A.,
and GreenPoint Mortgage Funding, Inc. filed a motion to dismiss the Third Amended Complaint
on November 30, 2011. (Dkt. No. 61.) Defendants BAC Home Loans Servicing, L.P., Bank of
America Corporation, Bank of America, N.A., and Mortgage Electronic Registration Systems
Inc. filed a motion to dismiss on December 7, 2011. (Dkt. No. 62.) All defendants are now
represented by Givens Pursley L.L.P. (Dkt. No. 79, Substitution of Counsel for Defendants
Capital One, N.A. and GreenPoint Mortgage Funding, Inc., filed on June 11, 2012.)
Memorandum Decision and Order - 3
As to the remaining claims, which include Count 10 (TILA Violations), Count 11
(Breach of Contract), and Count 13 (RESPA Violations), the court finds they have been
sufficiently pled and may proceed to discovery.
ORDER
Accordingly, and for the reasons stated herein, defendants’ motions to dismiss (Dkt. Nos.
61 & 62) are GRANTED with respect to all claims, with the exception of the following three:
Count 10 (TILA Violations); Count 11 (Breach of Contract); and Count 13 (RESPA Violations).
At the August 23, 2013 oral argument on the motions to dismiss, both plaintiffs and
defendants indicated that these remaining claims may be suitable for disposition via summary
judgment. In light of the prolonged history of this case, in the event the parties wish to pursue
these remaining claims through a motion for summary judgment, they are directed to file, within
45 days of the date of this Order, their respective summary judgment motions and accompanying
memoranda in accordance with the local rules.
It is so ordered.
DATED this 30th day of September, 2013.
_________________________________
Dee Benson
United States District Judge
Memorandum Decision and Order - 4
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