Bou-Nassif v. Bank of America, N.A. et al

Filing 23

District Judge Leo T. Sorokin: ORDER ON DEFENDANTS MOTION TO DISMISS entered granting 14 Motion to Dismiss for Failure to State a Claim for Failure to State a Claim Plaintiff may seek leave to amend the complaint within fourteen(14) days of this Order.(See attached Order). (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
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EDWARD BOU-NASSIF,
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Plaintiff,
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v.
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Civil Action No. 15-10066-LTS
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BANK OF AMERICA, N.A.,
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FEDERAL NATIONAL MORTGAGE
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ASSOCIATION,
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and JOHN DOE
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Defendants.
)
)

ORDER ON DEFENDANTS’ MOTION TO DISMISS
April 16, 2015
SOROKIN, J.
Plaintiff Edward Bou-Nassif (“Plaintiff”) has filed a complaint with a sparse set of
factual allegations. Compl. Specifically, Plaintiff alleges that in April of 2011, he sent a
package of documents for consideration for a loan modification, Compl. ¶ 3, that on August 11,
2011 an identified employee of Bank of America told Plaintiff that the Bank had suspended
foreclosure procedures on his home, id. ¶ 4, that on August 12, 2011, Bank of America
foreclosed on his property, id. ¶ 6, and that thereafter continued discussions took place between
Plaintiff and the Bank “as to undue [sic] this matter and to re-assess this miss communication
[sic] because the Plaintiff was under the HAMP procedures and a suspense [sic] of this
foreclosure action was to take place,” id. ¶ 7. Nonetheless, on September 13, 2011 Plaintiff
received a Notice to Quit, a hearing was scheduled for eviction on October 31, 2011, but
cancelled due to a surprise snowstorm, no further date was issued to the Plaintiff and, on January

11, 2012, Plaintiff and his family, including three young children, were physically removed from
their home. Id. ¶¶ 8-10.
Plaintiff asserts nine separate counts naming Bank of America, Federal National
Mortgage Association (“Fannie Mae”) and a John Doe as defendants (“Defendants”). Id.
Defendants move to dismiss the complaint. Doc. No. 14.
A complaint must provide “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In deciding a motion to dismiss, the Court,
accepting all well-pleaded facts as true and viewing them in a light most favorable to the
claimant, must dismiss a complaint that fails “to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient
factual allegations, accepted as true, to state a claim that is “plausible on its face,” showing more
than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To meet this
standard, the complaint must contain “enough factual material ‘to raise a right to relief above the
speculative level.’” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011)
(quoting Twombly, 550 U.S. at 555).
In Count I Plaintiff brings a claim under chapter 93A, section 2 of the Massachusetts
General Laws against the defendants. This claim is DISMISSED against both defendants for
failure to plead compliance with section 9(3) of chapter 93A requiring the sending of a written
demand for relief in advance of filing suit. See Smith v. Jenkins, 777 F. Supp. 2d 264, 267 (D.
Mass. 2011); Mass. Gen. Laws ch. 93A, § 9(3). This claim is DISMISSED against defendant
Fannie Mae as the Complaint fails to state a plausible claim of violation of Chapter 93A by this
defendant. Simply put, there are no allegations against Fannie Mae at all.

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In Count II Plaintiff brings a common law misrepresentation claim against both
defendants. This claim is DISMISSED against Fannie Mae for there are no factual allegations
supporting such a claim against that defendant. This claim is DISMISSED against Bank of
America for failing to allege sufficient non-conclusory factual allegations which plausibly allege
the claim.
In Count IV Plaintiff brings a claim for Breach of the Covenant of Good Faith and Fair
Dealing arising out of the Note and Mortgage. This claim is DISMISSED as Plaintiff fails to
identify either a provision of the Note or Mortgage violated by a defendant or how proceeding
with a foreclosure breached the covenant of good faith and fair dealing arising out of the
Mortgage or Note. This claim also fails to comply with the basics requirements of notice
pleading by failing to identify the defendant, as Defendants’ papers suggest that Fannie Mae
acquired title to Plaintiff’s home pursuant to the foreclosure deed and therefore it, not Bank of
America, may have conducted the eviction, and it owes no duty to Plaintiff as it was not a party
to any contract with Plaintiff.
In Count V Plaintiff alleges negligence by Bank of America in servicing Plaintiff’s
mortgage. Under Massachusetts law, lenders normally do not owe borrowers a duty of care. See
FAMM Steel, Inc. v. Sovereign Bank, 751 F.3d 93, 102 (1st Cir. 2009). Although a fiduciary
duty to a borrower can arise when the lender “assume[s] a duty of care to the borrower through
contractual terms” or when an “usual relationship of trust” between the borrower and lender
exists, see Pimental v. Wachovia Mortg. Corp., 411 F. Supp. 2d 32, 40 (D. Mass. 2006), Plaintiff
does not make any claim that a fiduciary relationship arose between the parties, contractually or
through a special relationship. Accordingly, this claim is DISMISSED.

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In Count VI Plaintiff alleges a violation of RESPA “12 U.S.C. § 2705 regarding transfer
of servicing and responding to qualified written requests.” Compl. ¶ 35. Section 2705 concerns
emergency mortgage relief payments. 12 U.S.C. § 2705. Plaintiff makes no factual allegations
to support such a claim and, in any event, § 2705 does not give rise to an express private right of
action. Lopenlena v. Litton Loan Serv., LP, No. 3:12-CV-05313, 2012 WL 4479580, at *3
(W.D. Wash. Sept. 28, 2012). Perhaps, as defendants suggest, Plaintiff means to plead a claim
under § 2605 which establishes standards regarding disclosures at the time of a mortgage loan,
related disclosures when servicers change and certain other requirements. See 12 U.S.C. § 2605.
Plaintiff’s claim fails to set forth plausible factual allegations sufficient to state such a claim.
Contrary to defendants’ argument, § 2614 establishes a three year statute of limitations for
violations of § 2605. 12 U.S.C. § 2614. Accordingly, Count VI is DISMISSED.
In Count VII Plaintiff alleges breach of an oral contract not to foreclose. This claim is
DISMISSED as it appears to violate the Massachusetts Statute of Frauds, Mass. Gen. Laws ch.
259, § 1, French v. Chase Bank, N.A., No. 10-CV-11330-RGS, 2012 WL 273724, at *2 (D.
Mass. Jan. 31, 2012) (citing Montuori v. Bailen, 194 N.E. 714, 715 (Mass. 1935)), and Plaintiff
has failed to allege sufficiently all the elements of a contract claim including the essential terms
of the contract and his performance under it. The claim fails as to Fannie Mae as there are no
factual allegations regarding Fannie Mae.
In Count VIII Plaintiff alleges a promissory estoppel claim. This claim is DISMISSED
as to Fannie Mae for the reasons stated with respect to other counts. It is DISMISSED as to
Bank of America as it is pled in too conclusory a manner. For example, Plaintiff makes no
allegation that after the foreclosure his reliance on the pre-closure promise was reasonable.

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In Count IX Plaintiff purports to assert a claim against “Orlans Moman PLLC” of breach
of duty. This claim is DISMISSED. Orlans Moman PLLC does not appear either in Plaintiff’s
caption or in the party section of the complaint. In addition, the record before the Court fails to
indicate that Plaintiff has served such an entity. The time for such service, absent good cause, has
passed under Federal Rule of Civil Procedure 4(m).
In Count III Plaintiff brings a claim for a declaration that defendant Bank of America
lacked the legal rights to foreclose on the Property. In light of the Court’s rulings on the Motion
to Dismiss above and the allegations in the Complaint, this claim is DISMISSED.
For the foregoing reasons, the Motion to Dismiss, Doc. No. 14, is ALLOWED. Plaintiff
may seek leave to amend the complaint. If Plaintiff persists in claims against Fannie Mae then it
must allege a factual basis for those claims. Plaintiff may not name individuals or entities in a
lawsuit as defendants and serve them, Doc. No. 7-1, while failing to include any allegations of
their conduct in the complaint. See Fed. R. Civ. P. 11(b). In addition to the foregoing, if
Plaintiff seeks leave to amend, Plaintiff’s memorandum in support of his motion to amend shall
explain how the proposed amended complaint cures the deficiencies identified by the Court.
Any motion to amend shall be filed within fourteen days of this Order.

SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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