Federal Deposit Insurance Corporation v. Drew Mortgage Associates, Inc.

Filing 76

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERFor the forgoing reasons, the motion by third-party defendant Jane F. Ferreira to dismiss (Docket No. 62) is, with respect to Counts I and V, ALLOWED, but is, with respect to Counts II, III and IV, DENIED.(Caruso, Stephanie)

United States District Court
District of Massachusetts
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Plaintiff,
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v.
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Drew Mortgage Associates, Inc., )
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Defendant,
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v.
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Tania M. Lopez, et al.,
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Third-Party
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Defendants.
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Federal Deposit Insurance
Corporation, as receiver for
AmTrust Bank,

Civil Action No.
15-14012-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of a dispute over information
contained in underwriting packages for several loan agreements.
Plaintiff, the Federal Deposit Insurance Corporation (“FDIC”),
alleges that defendant Drew Mortgage Associates, Inc. (“Drew” or
“defendant”) misrepresented or provided false information in
underwriting loan packages conveyed to AmTrust Bank.

Drew

subsequently filed a third-party complaint against the
borrowers, including Jane F. Ferreira (“Ferreira”), who provided
Drew with the information that it included in the subject loan
packages.

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Pending before the Court is Ferreira’s motion to dismiss
the third-party complaint as asserted against her.

For the

reasons that follow, the motion will be allowed, in part, and
denied, in part.
I.

Background
A.

The Loan Purchase Agreement

In or about June, 2013, Drew entered into a loan purchase
agreement (“the agreement”) with Ohio Savings Bank, later
renamed AmTrust Bank (“AmTrust”).

Pursuant to that agreement,

AmTrust was to purchase Drew’s interest in certain mortgages
granted by borrowers to Drew.

Drew, in turn, was obligated to

collect information from prospective borrowers and submit it to
AmTrust.
B.

Ferreira’s Loans

In 2006, Ferreira submitted two loan applications, in the
amounts of $232,500 and $77,500, respectively, to Drew.

AmTrust

approved those loans and, later, Ferreira granted two mortgages
on property in Orlando, Florida, to Drew to secure the loans.
In 2009, AmTrust filed a foreclosure action against
Ferreira in Florida state court.

That case was resolved when

Ferreira sold the property, pursuant to a short sale agreement
with AmTrust, thus satisfying and discharging the mortgages.

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C.

Procedural History

In December, 2015, the FDIC, as receiver for AmTrust, filed
a one-count complaint against Drew for breach of the loan
purchase agreement, alleging that Drew misrepresented or
provided false information to AmTrust with respect to loan
packages.1
In April, 2016, Drew filed a third-party complaint against
Ferreira and five other borrowers, for breach of contract (Count
I), fraud (Count II), negligent misrepresentation (Count III),
indemnification (Count IV) and contribution (Count V).

All of

the borrowers, except Ferreira, failed to respond to the thirdparty complaint, and, consequently, the Clerk of this Court
entered default judgment against them in September, 2016.
Ferreira, the only third-party defendant to respond, filed
a motion to dismiss Drew’s claims against her in September,
2016.
IV.

That motion is the subject of this memorandum.
Ferreira’s Motion to Dismiss
A.

Choice of Law

In response to this Court’s Order dated April 3, 2017,
requesting supplemental briefing on choice of law, the parties
stipulated that Florida law applies.

1

Accordingly, the Court

In or about 2009, the FDIC was appointed as receiver for
AmTrust, pursuant to 12 U.S.C. §§ 1464(d)(2)(A) and 1821(c)(5),
after the bank failed.
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will apply Florida law. See Chinn v. Gen. Motors Corp., No. 0711249, 2007 WL 4287594, at *2 (D. Mass. Dec. 7, 2007) (noting
that the parties “may stipulate that the law of one of the
jurisdictions will apply”).
B.

Motion to Dismiss
1.

Legal Standard

To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).

A court may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Id.

Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to

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judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
2.

Application

Ferreira seeks dismissal of all of Drew’s claims against
her on grounds that 1) the claims are barred by the respective
statutes of limitations and/or 2) Drew has failed to state a
claim upon which relief can be granted.
a.

Count I:

Breach of Contract

Under Florida law, breach of contract claims must be
brought within five years of the alleged breach. Fla. Stat.
§ 95.11(2)(b).
Here, the alleged breach occurred when Ferreira purportedly
misrepresented facts on her loan applications that she submitted
to Drew.

Because her loans closed in November, 2006, nearly ten

years before Drew filed its third-party complaint, Drew’s breach
of contract claim is time-barred.
Although Drew might not have known about the harms arising
out of the subject misrepresentations until the FDIC filed its
lawsuit in 2015, the limitations period began to run at the time
of breach not when Drew learned of the harm. Med. Jet, S.A. v.
Signature Flight Support-Palm Beach, Inc., 941 So. 2d 576, 578
(Fla. Dist. Ct. App. 2006).
Accordingly, Count I of the third-party complaint will be
dismissed.

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b.

Count II:

Fraud

Ferreira avers that Drew’s claim for fraud is barred by the
statute of limitations because Drew knew or should have known in
November, 2006, that the information it provided to AmTrust
about Ferreira’s loans was false.

Drew responds that it was not

obligated to verify the information that Ferreira provided to
it, and, as a result, it did not know that the information might
be false until the FDIC filed its lawsuit in December, 2015.
The statute of limitations for fraud claims under Florida
law is four years. Fla. Stat. § 95.11(3)(j).

The limitations

period can be tolled, however, pursuant to the so-called
discovery rule in which the limitations period does not commence
until the facts giving rise to the claim for fraud were
discovered or should have been discovered with due diligence.
Fla. Stat. § 95.031(2)(a).
Taking Drew’s allegations in its third-party complaint as
true, as the Court must do, see Mack v. Consolidated Rail Corp.,
24 F. Supp. 2d 126, 127 (D. Mass. 1998), it did not have to
verify that Ferreira’s information was accurate.

Moreover,

Ferreira’s first mortgage was assigned to another mortgagee.
Therefore, Drew did not know that the information in Ferreira’s
loan packages could have been false until the FDIC filed its
complaint with this Court in December, 2015.

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Because Drew filed

its third-party complaint four months later, in April, 2016, the
fraud claim is well within the four-year limitations period.
c.

Count III:

Negligent Misrepresentation

Florida’s statute of limitations for negligent
misrepresentation is four years. Lehman Bros. Holdings, Inc. v.
Phillips, 569 Fed. App’x 814, 816 (11th Cir. 2014).

As for

claims of fraud, the discovery rule tolls the limitations period
for claims of negligent misrepresentation. Id. at 817.
Although, perhaps, Drew should have known in November,
2006, that it could be harmed by the information provided by
Ferreira, “the mere possibility of damage at a later date” will
not initiate the limitations period. Id. (quoting Kellermeyer v.
Miller, 427 So. 2d 343, 346-47 (Fla. Dist. Ct. App. 1983)).
Rather it begins when Drew is actually harmed by the alleged
misrepresentations, see id., and that did not occur until the
FDIC filed its lawsuit in 2015.

Therefore, Drew’s claim for

negligent misrepresentation is timely.
d.

Count IV:

Indemnification

In Count IV, Drew seeks indemnification from Ferreira (and
the other third-party defendants) if it is found liable to the
FDIC.

Ferreira avers that 1) Drew has not stated a claim for

indemnification because he does not allege a contractual basis
for such an obligation and 2) the claim is barred by the statute
of limitations.

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With respect to the statute-of-limitations issue, the Court
concludes that the indemnity claim is not time-barred.

Under

Florida law, the statute of limitations on a claim for indemnity
does not begin to run until a judgment has been entered or the
defendant has paid the claim. Kala Invs., Inc. v. Sklar, 538
So. 2d 909, 915-16 (Fla. Dist. Ct. App. 1989).

Neither of those

has occurred and, thus, Count IV is timely. See id.
Ferreira’s sole contention that Drew has not stated a claim
for indemnification because it failed to allege a contractual
obligation is also unpersuasive.

As Drew correctly notes,

Florida law permits indemnity claims based upon common law
rather than a written or oral contractual provision. See
Diplomat Props. Ltd. P’ship v. Technoglass, LLC, 114 So. 3d 357,
359-60 (Fla. Dist. Ct. App. 2013) (citing Houdaille Indus.,
Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979)).
Accordingly, Count IV will not be dismissed.
e.

Count V:

Contribution

Finally, in Count V, Drew seeks contribution from Ferreira
if it is found liable to the FDIC.
Florida law permits a claim for contribution only against a
joint tortfeasor. Sterbenz v. Anderson, No. 8:11-cv-1159, 2013
WL 1278160, at *7 (M.D. Fla. Mar. 28, 2013) (quoting Lapidus v.
Citizens Fed. Sav. & Loan Ass’n, 389 So. 2d 1057, 1058 (Fla.
Dist. Ct. App. 1980) (per curiam)).

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Here, the FDIC has asserted

a breach of contract claim against Drew not a tort claim.
Therefore, Ferreira cannot be a joint tortfeasor with Drew. See
Lapidus, 389 So. 2d at 1058.

Because Drew has failed to state a

claim for contribution, Count V will be dismissed.

ORDER

For the forgoing reasons, the motion by third-party
defendant Jane F. Ferreira to dismiss (Docket No. 62) is, with
respect to Counts I and V, ALLOWED, but is, with respect to
Counts II, III and IV, DENIED.
So ordered.
/s/ Nathaniel M. Gorton
d
Nathaniel M. Gorton
United States District Judge
Dated April 21, 2017

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