Menorath v. Bank of America, N.A. et al

Filing 12

Ch. Magistrate Judge Judith G. Dein: MEMORANDUM OF DECISION AND ORDER entered granting Defendants' Motion to Dismiss the Verified Amended Complaint. (Dambrosio, Jolyne)

Menorath v. Bank of America, N.A. et al

Doc. 12

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

BUONSONG MENORATH, Plaintiff, v. BANK OF AMERICA, NA., et al., Defendants.

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CIVIL ACTION NO. 10-11461-JGD

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS
There being no opposition, the defendants' Motion to Dismiss the Verified Amended Complaint (Docket No. 9) is ALLOWED. The complaint purports to state a claim for breach of the implied covenant of good faith and fair dealing arising out of the defendants' review of the plaintiff's mortgage under the Home Affordable Modification Program ("HAMP") and the defendants' related Service Participation Agreements ("SPA") with the Federal Government. As detailed in the defendants' memorandum in support of their motion to dismiss (Docket No. 10), courts addressing the issue have found that there is no private right of action against lenders under HAMP. Moreover, the courts have routinely held that borrowers are not third-party beneficiaries of the SPA. The plaintiff has not identified any contrary authority or legal theory. Since the plaintiff is not a party to an enforceable contract, she cannot maintain a claim of breach of the covenant of good faith and fair dealing implied in that contract. See Mass. Eye & Ear

Dockets.Justia.com

Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 230 (1st Cir. 2005). The motion to dismiss for failure to state a claim is allowed and the complaint is dismissed without prejudice.

/ s / Judith Gail Dein Judith Gail Dein U.S. Magistrate Judge DATED: November 1, 2010

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