Ramos v. Bank of America, N.A. et al
Filing
38
MEMORANDUM OPINION (c/m to Plaintiff 11/26/12 sat). Signed by Chief Judge Deborah K. Chasanow on 11/26/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
CARMEN RAMOS
:
v.
:
Civil Action No. DKC 11-3022
:
BANK OF AMERICA, N.A., et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this diversity
action is the motion to dismiss filed by Defendants Bank of
America, N.A., and BAC Home Loan Servicing, LP.
(ECF No. 33).
The issues have been fully briefed, and the court now rules, no
hearing deemed necessary.
Local Rule 105.6.
For the following
reasons, the motion to dismiss will be granted.
I.
Background1
This
action
arises
from
Plaintiff
Carmen
Ramos’s
unsuccessful attempts to obtain a permanent modification of her
mortgage
loan
Department’s
pursuant
Home
to
Affordable
the
United
Modification
States
Treasury
Program
(“HAMP”).
HAMP is a national program designed to stem the home foreclosure
crisis by providing affordable mortgage loan modifications to
1
As two opinions in this case have come before this one,
some familiarity with the facts is assumed.
See Ramos v. Bank
of America, N.A., et al., No. DKC 11-3022, 2011 WL 5574023
(D.Md. Nov. 15, 2011); Ramos v. Bank of America, N.A., et al.,
No. DKC 11-3022, 2012 WL 1999867 (D.Md. June 4, 2012).
eligible borrowers.
In January 2011, Ramos suffered a reduction
in her income as a result of a change in her employment.
remedy
her
economic
modification
mortgage.
from
Despite
situation,
Defendants,
allegedly
Ramos
sought
HAMP
loan
Ramos’s
home
modification
and
who
serviced
qualifying
for
a
To
completing all of the required application materials, Plaintiff
never received a permanent modification of her loan.
On
September
14,
2011,
Ramos
filed
a
pro
se
complaint
against Defendants in the Circuit Court for Montgomery County,
Maryland, alleging eleven counts based on Defendants’ purported
misconduct in connection with her attempts to procure a loan
modification.
(ECF No. 2).
removed to this court.
After service, Defendants timely
(ECF No. 1).
Ramos unsuccessfully moved
to remand the case back to state court.
(ECF Nos. 19, 20).
On October 31, 2011, Defendants moved to dismiss.
12).
(ECF No.
By memorandum opinion and order issued on June 4, 2012,
that motion was granted.
(ECF Nos. 30, 31).
In its ruling, the
court first explained the distinction between claims that seek
to enforce HAMP’s guidelines and claims that seek to enforce the
terms of a Trial Period Plan (“TPP”) agreement, a standardized
contract between lenders and borrowers that establishes a threemonth trial modification of a borrower’s existing mortgage and
promises a permanent modification if certain conditions are met.
(ECF No. 30, at 6-7).
Although there is no private cause of
2
action under HAMP, the court observed that a plaintiff seeking
to enforce the terms of a TPP, “if one exists,” may have a
cognizable cause of action that is “separate and apart from
HAMP.”
(Id. (citing Allen v. CitiMortgage, Inc., No. CCB-10-
2740, 2011 WL 3425665, at *8 (D.Md. Aug. 4, 2011); Stovall v.
SunTrust Mortg., Inc., No. RDG-10-2836, 2011 WL 4402680, at *11
(D.Md. Sept. 20, 2011)).
Applying this distinction, four of Plaintiff’s counts were
dismissed
because
they
relied
on
factual
assertions
that
Defendants had improperly rejected Plaintiff’s application for a
preliminary loan modification and thus, at bottom, sought to
enforce HAMP’s guidelines rather than the terms of a TPP.
at
7).
Although
the
original
complaint
contained
(Id.
factual
inconsistencies regarding whether Plaintiff ever entered into a
TPP with Defendants, Ramos’s remaining counts were nonetheless
liberally construed as “seeking to enforce the TPP itself or
some other right independent of HAMP.”
(Id.).
Due to pleading
inadequacies, however, each of these counts was still dismissed
under Rule 12(b)(6).
Notably,
claims
for
(Id. at 8-18).
the
memorandum
unjust
enrichment
opinion
and
dismissed
violation
of
Plaintiff’s
the
Maryland
Consumer Protection Act (“MCPA”) without prejudice and provided
Ramos with specific, detailed instructions regarding amendment.
First,
in
order
for
her
fraud-based
3
MCPA
claim
to
meet
the
heightened pleading requirement set forth in Fed.R.Civ.P. 9(b),
Ramos was advised that “[i]t is not enough to aver the general
nature of Defendants’ compliance, or lack thereof, with HAMP;
every factual allegation in support of a potential MCPA claim
must be grounded in Defendants’ actual conduct pursuant to the
(ECF No. 30, at 12) (emphasis added).2
TPP.”
As to unjust
enrichment, Plaintiff was instructed that any amendment must set
forth “non-conclusory facts . . . suggesting that Defendants
obtained an unfair benefit by entering into the TPP with Ms.
Ramos.”
(Id. at 15) (emphasis added).
The memorandum opinion
thus unequivocally put Ramos on notice that the success of any
future
amended
complaint
depended
on
her
ability
to
allege
specific facts regarding the existence of a TPP and Defendants’
conduct in connection thereto.
On
June
12,
Plaintiff
timely
amended
her
complaint
to
assert claims for unjust enrichment and violations of the MCPA.
(ECF
No.
32).3
As
in
the
original
complaint,
the
amended
complaint alleges that since Ramos submitted a completed “FHA-
2
Although the original complaint asserted separate counts
for violations of the MCPA and for “unfair and deceptive trade
practices,” the claims were construed together as asserting a
single cause of action under the MCPA. (ECF No. 30, at 8-9).
3
Plaintiff again pleads two separate counts for “unfair and
deceptive trade practices” and violations of the MCPA. (ECF No.
32 at 7-8, 9-10). Consistent with the court’s prior memorandum
opinion, these two counts will be construed together as a single
claim brought under the MCPA.
4
HAMP”
application
packet
to
Defendants
on
February
3,
2011,
numerous delays have prevented her from obtaining a permanent
loan
modification.
allegedly
acted
Throughout
deceptively
this
and
time
in
period,
violation
Defendants
of
HAMP
by:
repeatedly losing Ramos’s paperwork; asking her to re-produce
documents they already possessed; maintaining inadequate staff
to
assist
Plaintiff
with
the
HAMP
process;
“filter[ing]”
borrowers, including Plaintiff, through “endless phone calls reroute[d]
to
various
representatives
who
g[a]ve
conflicting
answers” about HAMP; and “attempt[ing] to bully Plaintiff into
making decisions which [were] not in her best interests” and
were contrary to HAMP guidelines.
(Id. ¶¶ 28-29).
Defendants
took “other steps to thwart, delay or prevent Plaintiff the
extension of offers for a permanent modification” of her loan,
which purportedly allowed them to “charg[e] her improper fees
and penalties.”
(Id. ¶ 28).
Importantly,
did
not
resolve
Defendants.
Plaintiff’s
whether
newly
Ramos
added
ever
factual
entered
into
allegations
a
TPP
with
In an early section of the amended complaint titled
“Defendants[’] Course of Conduct,” Plaintiff generally alleges
that
Defendants
Plaintiff
and
“entered
thousands
into
of
a
standardized
homeowners
for
a
contract
temporary
modification of their existing note and mortgage.”
¶ 14).
with
trial
(ECF No. 32
Later, however, Plaintiff avers that Defendants violated
5
HAMP by “[d]enying [her] a Permanent Modification or Trial Plan
pursuant
to
her
numerous
requests
for
such”
(id.
¶
28a)
(emphasis added) and further alleges that Defendants denied her
“the opportunity to secure any . . . permanent modifications [of
her loan] through the completion of the Trial Plans which she
was never given” (id. ¶ 42).4
Defendants filed the pending motion to dismiss the amended
complaint
Defendants
(ECF
No.
filed
a
33),
which
reply
(ECF
Ramos
No.
opposed
36)
and
(ECF
a
No.
35).
“Notice
of
Supplemental Authority” (ECF No. 37) in support of their motion.
II.
Standard of Review
The
purpose
of
a
motion
to
dismiss
pursuant
12(b)(6) is to test the sufficiency of the complaint.
to
Rule
Presley
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
4
Presumably in an attempt to destroy diversity jurisdiction
under 28 U.S.C. § 1332 and to obtain a remand back to state
court, Plaintiff’s amended complaint also prays for damages in
the amount of $74,950.00 (ECF No. 32 ¶ 46) – an amount that is
significantly less than the $1 million prayed for in the
original complaint (ECF No. 2 ¶ 70).
It is well-established,
however, that diversity jurisdiction is not affected where a
plaintiff amends her complaint after removal to “reduce[] the
claim below the requisite amount [in controversy].” Gardner v.
AMF Bowling Ctrs., Inc., 271 F.Supp.2d 732, 733 (D.Md. 2003)
(citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 292 (1938)); see also Hernandez v. Carlson Holdings, Inc.,
No. 10–00539–RDG, 2010 WL 4181455, at *1-2 (D.Md. Oct. 22, 2010)
(post-removal amendment of a diversity complaint to seek less
than $75,000 does not provide a basis for remanding to state
court).
6
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n. 3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citations omitted).
At this stage, the court must consider all well-pleaded
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations in
the
light
most
favorable
to
the
plaintiff,
see
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, the court need
not accept unsupported legal allegations.
Revene v. Charles
Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Nor must it
agree
allegations,
with
legal
conclusions
couched
as
factual
Iqbal, 556 U.S. at 678, or conclusory factual allegations devoid
of any reference to actual events, United Black Firefighters v.
Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
“[W]here the
well-pleaded facts do not permit the court to infer more than
7
the mere possibility of misconduct, the complaint has alleged,
but it has not ‘show[n] . . . that the pleader is entitled to
relief.’”
Iqbal,
8(a)(2)).
556
U.S.
at
679
(quoting
Fed.R.Civ.P.
Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
that
requires
the
reviewing
experience and common sense.”
court
to
draw
on
its
judicial
Id.
III. Analysis
Defendants
principally
contend
that
Plaintiff
failed
to
amend her complaint in any meaningful way, such that dismissal
is warranted under Rule 12(b)(6) for the same reasons set forth
in the court’s prior memorandum opinion and order.
at
2-3).
reasonable
Specifically,
conclusion
Defendants
that
can
be
argue
drawn
(ECF No. 33,
that
from
the
the
only
factual
inconsistencies that persist in Plaintiff’s amended complaint is
that Defendants never offered her a TPP agreement.
Accordingly,
Defendants argue that the remaining counts must be dismissed
because
they
Defendants
seek
to
alternatively
enforce
HAMP
contend
rather
that
than
Plaintiff’s
any
TPP.
amended
complaint must be dismissed because of pleading inadequacies.
Plaintiff does not directly respond to Defendants’ arguments but
instead submits an opposition brief that is virtually identical
to the one she filed in response to Defendants’ first motion to
8
dismiss.
(Compare ECF Nos. 27 and 35).
Defendants’ arguments
are well-taken.
“[W]hen
a
complaint
contains
inconsistent
and
contradictory statements, it fails to state a claim.”
self-
Hosack v.
Utopian Wireless Corp., No. DKC 11-0420, 2011 WL 1743297, at *5
(D.Md. 2011) (citing In re Livent Inc. Noteholders Sec. Litig.,
151 F.Supp.2d 371, 406 (S.D.N.Y. 2001)).
Here, despite clear
instructions about the need to allege specific facts regarding
the
existence
makes
of
a
TPP,
self-contradictory
question.
Plaintiff’s
statements
amended
regarding
complaint
this
again
critical
Indeed, Ramos’s newly added factual allegations all
explicitly aver the non-existence of such a contract (see ECF
No.
32
¶¶
28,
45),
directly
contradicting
her
conclusory
allegation that she, along with millions of other homeowners,
entered into a TPP agreement with Defendants (id. ¶ 15).
In
light of these inconsistencies, it cannot be said that this
latter averment constitutes a well-pleaded allegation that must
be taken as true in ruling on Defendants’ motion to dismiss.
When the inconsistent TPP allegations are disregarded, the
only remaining facts asserted in the amended complaint relate
Defendants’
purported
actions
or
inactions
under
HAMP.
For
example, in support of her MCPA claim, Plaintiff alleges that
Defendants violated HAMP by denying her a loan modification;
failing to maintain adequate staff to help Plaintiff with her
9
application; and generally preventing Plaintiff from obtaining a
loan
modification
additional
fees
Plaintiff
–
alleges
enrichment
all
and
for
purpose
penalties.
similar
claim,
the
(ECF
conduct
averring
of
No.
32
in
support
it
that
charging
would
¶¶
of
be
Ramos
27-33).
her
unjust
unjust
for
Defendants to retain the benefits they received from Plaintiff
while they executed their “multi-phase plan of not giving her a
FHA-HAMP loan.”
factual
(Id. ¶¶ 34-40).
allegations
assert
In essence, all of Plaintiff’s
that
Defendants
pursuant to the HAMP guidelines.
acted
improperly
As set in the court’s prior
memorandum opinion, however, Congress did not create a private
right of action to enforce HAMP.
the
intent
of
the
A plaintiff cannot circumvent
legislature
by
recasting
violations as alternative causes of action.
alleged
HAMP
See, e.g., Parks v.
BAC Home Loan Servicing, LP, 825 F.Supp.2d 713, 716 (E.D.Va.
2011) (dismissing a claim for breach of the implied duty of good
faith
and
recast
fair
the
Defendants’
enrichment
HAMP
dealing
claim”).
alleged
and
“as
HAMP
MCPA
claims
it
is
merely
Because
they
another
rely
violations,
are
not
attempt
to
exclusively
on
Plaintiff’s
cognizable
and
unjust
will
be
dismissed with prejudice.
In any event, the amended complaint fails to remedy the
pleading
deficiencies
memorandum opinion.
identified
in
the
court’s
previous
The newly added allegations in support of
10
Ramos’s fraud-based MCPA claim do not specify the time, place,
or content of Defendants’ allegedly deceptive actions.
No. 32 ¶¶ 27-33, 41-45).
claim
fails
standard.
Plaintiff’s
to
comply
(See ECF
Accordingly, Plaintiff’s amended MCPA
with
Rule
9(b)’s
heightened
pleading
Likewise, the conclusory allegations in support of
unjust
enrichment
claim
–
i.e.,
that
Defendants
unjustly received a benefit at Plaintiff’s expense by engaging
in deceptive conduct (id. ¶¶ 34-40) – are insufficient to state
a plausible claim for relief under Twombly and Iqbal.
Hence,
the amended complaint is also subject to dismissal for failing
to meet the applicable pleading standards.
IV.
Conclusion
For the foregoing reasons, the motion to dismiss filed by
Defendants will be granted.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
11
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