Calon v. Bank of America Corporation et al
ORDER - the Court DENIES Plaintiff's Motion for Extension of Time to Complete Discovery 98 ; DENIES AS MOOT Plaintiff's Motion to Compel 99 ; GRANTS Bank of America N.A. (BANA's) Motion for Summary Judgment 101 ; and DENIES plaintiff's Motions for Protective Order [105, 107]. Signed on 9/18/17 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
BANK OF AMERICA, ET AL.,
Currently pending before the Court is Plaintiff’s Motion for Extension of Time to
Complete Discovery (Doc. # 98); Plaintiff’s Motion to Compel (Doc. # 99); Bank of
America N.A. (“BANA’s”) Motion for Summary Judgment (Doc. # 101) and plaintiff’s
Motions for Protective Order (Docs. # 105, 107).
On December 9, 2014, plaintiff filed his initial complaint asserting five causes of
action against Bank of America Corporation (“BAC”), Bank of America Corporation, N.A.
(“BANA”) and Brian Moynihan (Bank of America’s CEO). On June 29, 2015, the Court
granted in part and denied in part BANA’s Motion to Dismiss1. The Court directed
plaintiff to file a First Amended Complaint on or before July 15, 2015. When plaintiff did
not file his Amended Complaint on or before July 15, 2015, the Court issued an Order to
Show Cause Order on July 22, 2015, directing plaintiff to show cause as to why the
matter should not be dismissed due to failure to comply with the Court’s earlier order.
The court granted the motion to dismiss as to Brian Moynihan. The Court also granted
the motion to dismiss as to defendant BAC, but allowed plaintiff an opportunity to
replead any allegations he had which relate to BAC directly.
In the First Amended Complaint, plaintiff was directed to list in separate counts the
claims he was asserting against the various defendants. On July 24, 2015, plaintiff filed
a forty-two page, three-hundred thirty-five paragraph First Amended Complaint in which
he asserts twenty counts against BANA. On May 17, 2016, the Court dismissed five of
plaintiff’s claims. BANA filed a Motion for Summary Judgment on November 21, 2016
(Doc. # 101). Plaintiff’s response was due on or before December 15, 2016. Plaintiff
failed to file any response to the summary judgment motion.
Plaintiff’s Motion for Extension of Time to Complete Discovery
Plaintiff has moved for a Motion for Extension of Time to Complete Discovery (Doc.
# 98). In his Motion plaintiff requests an additional ninety days to complete discovery.
Plaintiff states that he recently learned that the defendants had illegally accessed
sealed court records, medical records and private financial information and that the
defendant sent employees to plaintiff’s property to harass and intimidate him after he
paid off his loan. Plaintiff states that he is seeking information so that he may file
criminal charges against these individuals. Plaintiff then states that defendant continues
to withhold data, witnesses, audio and other items that plaintiff is entitled to. BANA
opposes the motion, stating that plaintiff’s motion is untimely and filed after the close of
discovery. BANA also states that it has fully responded to plaintiff’s written discovery.
BANA also notes that the Court previously extended the discovery in this case from
November 19, 2015 until October 24, 2016. During these eleven months, plaintiff failed
to conduct any additional discovery. Finally, BANA states that despite seeking an
additional ninety days to complete discovery, plaintiff fails to state or describe what
additional information he needs. The Court agrees and finds that plaintiff’s request for
additional time to complete discovery is both untimely and without any basis. As noted
above, the Court previously granted plaintiff an extension of time to complete discovery,
but plaintiff did not utilize this time to conduct any discovery. Accordingly, because
plaintiff’s motion was untimely and because he failed to show good cause for extending
the deadline, the Court hereby DENIES Plaintiff’s Motion for an Extension of Time to
Complete Discovery (Doc. # 98).
Plaintiff’s Motion to Compel
Plaintiff in his Motion to Compel requests that the Court order defendant to turn over
a readable copy of his deposition. Plaintiff complains that the copy that he was
provided contained type which was too small for him to read. In opposition, defendant
states that the Motion should be denied because plaintiff failed to comply with Local
Rule 37.1 and also because the motion is moot. BANA states that the court reporter
sent plaintiff a copy of the transcript and defendant also mailed plaintiff a CD which
contained both a paper transcript as well as the video of the deposition. Plaintiff filed no
reply suggestions refuting defendant’s statements or indicating that he had not received
the CD. Accordingly, because it would appear that plaintiff has received the relief he
requested, the Court hereby DENIES AS MOOT plaintiff’s Motion to Compel (Doc. #
Plaintiff’s Motions for Protective Order
In his Motion for a Protective Order plaintiff states that he recently learned that
BANA and their attorneys illegally accessed or had in their possession medical records,
sealed court records and private financial information. Plaintiff also states that BANA
sent Bank of America employees to his property to harass and intimidate him after he
filed this action. Plaintiff also claims that BANA failed to give him enough notice of his
deposition and has now refused to provide him with a copy of his deposition. Plaintiff is
seeking an Order that BANA be ordered not to disclose or otherwise discuss the
deposition and that the deposition be stricken from the record due to the privileged
nature of the material and the manner in which it was obtained.
BANA states that the motion should be denied because plaintiff failed to comply with
Fed.R.Civ.P. 26(c) or Local Rule 37.1(a). Additionally, BANA argues that the motion is
untimely as it was filed over three months after his deposition was taken. BANA states
that Fed.R.Civ.P. 32(a)(5) states that a deposition may not be precluded unless the
party seeking preclusion promptly moves for a protective order. Thus, BANA argues
that this motion does not apply because plaintiff waited until after his deposition was
taken to challenge it. Similarly, BANA states that plaintiff consented to the time, date
and location of his deposition. BANA states that plaintiff was contacted on October 18,
2016 to determine his availability. Plaintiff indicated that he was available on October
24, 2016 and the parties agreed during the phone call that plaintiff’s deposition would be
taken at the Courthouse on that date. BANA states that plaintiff should not be allowed to
argue that the notice was insufficient, when he agreed to the date, place and time for
In his second motion for a protective Order, plaintiff requests that the Court order
BANA’s counsel to tell their client not to contact plaintiff. BANA states that the Motion
should be denied because plaintiff failed to comply with Fed.R.Civ.P. 26(c) or Local
Rule 37.1(a) and also because plaintiff has only made vague, general conclusory
allegations and has failed to provide any evidence that he has received coercive
mailings from defendant.
The Court agrees and finds that there is no basis for granting plaintiff’s Motions for
Protective Orders. The Court finds that plaintiff failed to comply with the Local Rules
regarding discovery disputes, the motions are untimely and are unsupported and make
only vague general assertions of perceived improprieties. Accordingly, the Court
hereby DENIES plaintiff’s Motions for Protective Orders (Docs. 105,107).
Defendant’s Motion for Summary Judgment
A moving party is entitled to summary judgment on a claim only if there is a showing
that Athere is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.@ Fed.R.Civ.P. 56(c). A[T]he substantive law
will identify which facts are material. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.@ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). If the moving party meets this requirement, the burden shifts to the
non-moving party to Aset forth specific facts showing that there is a genuine issue for
trial.@ Anderson, 477 U.S. 242, 248 (1986). In Matsushita Electric Industrial Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the
Court emphasized that the party opposing summary judgment Amust do more than
simply show that there is some metaphysical doubt as to the material facts@ in order to
establish a genuine issue of fact sufficient to warrant trial. In reviewing a motion for
summary judgment, the court must view the evidence in the light most favorable to the
non-moving party, giving that party the benefit of all inferences that may be reasonably
drawn from the evidence. Matsushia, 475 U.S. 574, 588; Tyler v. Harper, 744 F.2d 653,
655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985).
Western District of Missouri Local Rule 56.1 states in part:
(b) Opposing Suggestions.
1. A party opposing a motion for summary judgment must begin its
opposing suggestions by admitting or controverting each separately
numbered paragraph in the movant’s statement of facts. If the opposing
party controverts a given fact, it must properly support its denial in
accordance with Fed.R.Civ.P. 56(c). Unless specifically controverted by
the opposing party, all facts set forth in the statement of the movant are
deemed admitted for the purpose of summary judgment.
Plaintiff failed to file any response to defendant’s Motion for Summary Judgment.
Plaintiff does however refer to the Summary Judgment motion in his Reply Suggestions
in Support of his Motion for a Protective Order (Doc. # 110, p. 6). In his reply
suggestions, plaintiff states that the Court should deny the summary judgment motion
“out of hand” and that defendant is continuing to refuse to cooperate with plaintiff’s
discovery and has refused to identify witnesses and records. Plaintiff also argues that
defendant has failed to provide him with a copy of the video and audio from his
deposition. However, other than these general arguments, plaintiff has failed to
respond to either the specific factual statements in the motion for summary judgment or
defendant’s arguments about why their motion for summary judgment should be
Fed.R.Civ.P. 56(d) does allow for the Court to defer ruling on summary judgment
motions when facts are unavailable to the nonmovant. However, the Eighth Circuit has
explained that, “[t]o obtain a Rule 56[d] continuance, the party opposing summary
judgment must file an affidavit ‘affirmatively demonstrating . . .how postponement of a
ruling on the motion will enable him, by discovery or other means, to rebut the movant’s
showing of the absence of a genuine issue of fact.’” Ray v. American Airlines, Inc., 609
F.3d 917, 923 (8th Cir.2010)(quoting Humphreys v. Roche Biomedical Lab, Inc., 990
F.2d 1078, 1081 (8th Cir. 1993)). See also Ballard v. Heineman, 548 F.3d 1132, 1136-37
(8th Cir. 2008)(“Unless a party files an affidavit under Federal Rule of Civil Procedure
56[d] showing what facts further discovery may uncover, ‘a district court generally does
not abuse its discretion in granting summary judgment on the basis of the record before
it.’”)(quoting Nolan v. Thompson, 521 F.3d 983,986 (8th Cir. 2008)).
In the instant case, plaintiff has not provided an affidavit detailing what facts
additional discovery may uncover. Rather, plaintiff has made only vague, general
assertions that BANA has failed to provide him with the names of witnesses or
documents or that he needs additional time to complete discovery. The Court finds that
plaintiff has had more than ample time to conduct discovery. After the Court granted in
part and denied in part, defendant’s Motion to Dismiss, the Court entered an Amended
Scheduling Order, giving the parties an extension of over four months to complete
discovery. As previously discussed above, the Court finds that plaintiff has offered no
explanation as to why discovery should be extended in this case. In his Motion to
Extend Discovery, plaintiff states that he recently learned that the defendants had
illegally accessed or had in their possession sealed court records, his medical records
and his credit reports and bills. In his motion, plaintiff states that he is “seeking the
Court’s permission to investigate the above matters further as it will effect [sic] damage
amounts Plaintiff may be entitled to and provide further support of Plaintiff’s allegations
of intimidation and mistreatment by Defendant and the continuance of such
mistreatment by Defendant.” (Doc. # 98, p. 4). Plaintiff also states that he is seeking
the Court’s permission to “submit a subpoena to Fannie Mae to obtain the records of his
payments on the note and any related documentation concerning the transfer of
Plaintiff’s note to Defendant.”
As noted above, the Court finds that plaintiff has failed to allege with the required
specificity what discovery he needs to support his claims and to refute defendant’s
factual assertions. Nor has plaintiff explained why he could not have requested this
discovery earlier or why he waited until after the close of discovery to seek the
extension. In Newkirk v. GKN Armstrong Wheels, Inc., 168 F.Supp.3d 1174 (N.D.Iowa
2016), the Court stated:
[Plaintiff] as the party seeking a Rule 56(d) continuance, must do more
than simply assert that he may discover additional facts, and must do
more even that speculate about what those facts might be. . . .The reason
underlying such requirements is that ‘it is well settled that ‘Rule 56(f) does
not condone a fishing expedition’ where a plaintiff merely hopes to
uncover some possible evidence of [unlawful conduct]. Duffy v. Wolle,
123 F.3d 1026, 1041 (8th Cir. 1997). This is so, because “ ‘Rule 56[d] is
not a shield that can be raised to block a motion for summary judgment
without even the slightest showing by the opposing party that his
opposition is meritorious.’” Id (quoting United States v. Light, 766 F.2d
394, 397 (8th Cir. 1985)).
Id. at 1194, n.12. The Court finds that plaintiff has failed to establish with the required
degree of specificity what additional facts he could potentially uncover and how these
additional facts would refute the factual allegations in BANA’s summary judgment
motion. Accordingly, the Court will proceed to rule on BANA’s summary judgment
motion and because plaintiff failed to controvert the facts in the motion, the Court will
deem all of the facts asserted in the statement of facts as admitted. In Rogers v. Brouk,
No. 4:16-cv-1088SNLJ, 2017 WL 3333929 (E.D.Mo. Aug. 4, 2017), the Court stated:
[p]laintiff’s pro se status does not excuse him from responding to
defendant’s motion with specific factual support for his claims to avoid
summary judgment, Beck v. Skon, 253 F.3d 330, 333 (8th Cir.2001), or
from complying with local rules, see Schooley v. Kennedy, 712 F.2d 372,
373 (8th Cir.1983). However, “[t]he Eighth Circuit has determined that
when a plaintiff fails to respond adequately to a motion for summary
judgment, a district court should not treat such a non-response as
sufficient to dispose of the motion.” Lowry v. Powerscreen USB, Inc., 72
F.Supp.2d 1061, 1064 (E.D.Mo. 1999)(citing Canada v. Union Electric
Co., 135 F.3d 1211, 12113 (8th Cir. 1997)). “Courts should proceed to
examine those portions of the record properly before them and decide for
themselves whether the motion is well taken.” Id.
Id. at *2. Thus, the Court will proceed to analyze BANA’s Summary Judgment Motion.
The following facts are taken from BANA’s Statement of Uncontroverted Facts.
B. Statement of Facts
In 2000, plaintiff took out a loan from Countrywide Home Loans, Inc. On
November 29, 2000, plaintiff executed a promissory note for $20,001 in favor of
Countrywide Home Loans, Inc. The same day, plaintiff also executed a deed of trust
granting a security interest in the piece of real property described as 2500 NE 57th
Terrace, Gladstone, Missouri 64119. Plaintiff believed that a Countrywide eEasy Rate
Reduction Plan was incorporated into his contract via the Note and the Deed of Trust.
However, plaintiff admitted during his deposition that the eEasy Rate Flier was not
signed by anyone. Plaintiff admitted that neither the Note nor the Deed of Trust referred
to the Countywide eEasy Rate Reduction Plan.
On July 24, 2012, a class action lawsuit, Hall v. Bank of America, N.A. et al.,
Case No. 1:12-cv-22700 was filed in the United States District Court for the Southern
District of Florida. On July 2, 2013, a corrected Second Amended Class Action
Complaint was filed in the lawsuit. BANA was a named defendant in the lawsuit. A
nationwide class settlement agreement was entered into between BANA and the
plaintiffs in the class action suit. On June 18, 2014, the Southern District of Florida
court provisionally approved the Settlement Agreement and certified a settlement class
under Fed.R.Civ.P. 23(b)(3) and on December 17, 2014, the Court entered final
approval of the Settlement Agreement. On July 6, 2015, the United States Court of
Appeals for the Eleventh Circuit dismissed the last remaining appeal of the Final
The Settlement Class certified and approved was defined as:
a. All borrowers who had mortgage loans, home equity loans, or
home equity lines of credit by Bank of America, N.A.
or BAC Home Loans Servicing, LP, (formerly known as
Countrywide Home Loans Servicing, L.P.) who were
charged a premium for lender-placed hazard insurance
coverage issued by Balboa Insurance Company, Meritplan
Insurance Company, Newport Insurance Company, QBE
Insurance Corporation, QBE Specialty Insurance Company,
Praetorian Insurance Company, or one of their affiliates
within the Class Period. Class Members will have the right
to opt out of the Settlement Agreement consistent with the
terms of Fed. R. Civ. P. 23(b)(3).
b. The “Settlement Class Period” shall be from January 1,
2008 through February 3, 2014.
c. Excluded from the Class are: (i) individuals who are or
were during the Class Period officers, directors, or
employees of the Defendants or any of their respective
affiliates; (ii) any justice, judge, or magistrate judge of the
United States or any State, their spouses, and persons
within the third degree of relationship to either of them, or
the spouses of such persons; (iii) borrowers whose [LenderPlaced Insurance] LPI Policy was cancelled in its entirety such
that any premiums charged and/or collected were fully
refunded to the borrower; (iv) all borrowers who file a
timely and proper request to be excluded from the Class;
and (v) any borrowers who have settled or otherwise
released any LPI claims, including but
not limited to all borrowers who participated as settlement
class members in Farmer v. Bank of America, N.A. and
BAC Home Loans Servicing, L.P., Civil No. 5:11-CV10
00935-OLG (W.D. Tex.).
(Settlement Agreement, Ex H, at pp. 14-15; Order Granting Final Approval, Ex. J, at p.
The Settlement Agreement also contained a contractual release of liability
whereby the Settlement Class:
fully, conclusively, irrevocably, forever, and finally released,
relinquished, and discharged [BANA] from any and all claims,
actions, causes of action, suits, debts, sums of money, payments,
obligations, promises, damages, penalties, attorney’s fees and
costs, liens, judgments, and demands of any kind whatsoever that
each member of the settlement class may have on or before [July 6,
2015] or may have had in the past, whether in, whether in
arbitration, administrative, or judicial proceedings, whether as
individual claims or as claims asserted on a class basis, whether
past or present, mature or not yet mature, known or unknown,
suspected or unsuspected, whether based on federal, state, or local
law, statute, ordinance, regulations, contract, common law, or any
other source, that were or could have been sought or alleged in the
[Class Action] or that relate, concern, arise from, or pertain in any
way to [BANA’s] conduct, policies, or practices concerning
LPI Policies placed or charged by the Bank of America Defendants
during the Class Period.
(Settlement Agreement, Ex. H, at pp. 36-37; Order Granting Final Approval, Ex. J, at pp.
As part of the Class Action Settlement, a Settlement Administrator was hired.
The Administrator was charged with distributing Mail Notice, establishing a phone
system, establishing a web site, publishing notice and receiving and processing claims.
One of the settlement class members to whom the Administrator mailed a Notice to was
John Calon. Plaintiff was sent a notice package which included a summary of the Hall
class action settlement, instructions for completing and submitting the claim form and a
class action claim form. The Claims Administrator declared that the Notice was not
returned to them and they did not receive a request for exclusion from the settlement
class or any objection to the settlement from Mr. Calon. Plaintiff admitted that he copied
the information for his Amended Complaint from the class action lawsuit:
Plaintiff in his amended complaint, uses essentially the same form,
format and information that was used in Hall v. Bank of
America, because of its identical nature to Plaintiff’s predicament
with regard to lender force insurance.
(Plaintiff’s Reply to Court Order, Ex. N, at ¶ 6.) Plaintiff also admits that the underlying
facts of his lawsuit are identical to the facts of the Hall class action:
What remains of Plaintiff [ s i c ] action is identical to what happened to
certain class members in Hall vs. Bank of America, which was
accepted by the federal Court and later settled by Bank of America to
avoid trial. The only real difference is that Plaintiff changed the Class
nature and identification of the Hall class action t o that of a individual’s
private action. Plaintiff as an individual is entitled to same protections,
access and judgments of the federal court that are afforded to, the class
members in Hall v Bank of America.
(Plaintiff’s Reply to Court Order, Ex. N, ¶ 7).
Plaintiff admitted during his deposition that the basis for Count XI in his Amended
Complaint for Breach of Contract was the Note and the eEasy Rate Flier. He also
admitted that the sole basis for Count XII of his Complaint for Breach of the Implied
Covenant of Good Faith and Fair Dealing was the eEasy Rate Flier. Plaintiff also
admitted that the sole basis for Count XIII – Unjust Enrichment was the eEasy Rate
Flier. In his deposition, plaintiff admitted that the basis for Count XIV of his Complaint
for Breach of Contract was ¶ 4 of the Note. Paragraph 4 of the Note states:
I have the right to make payments of Principal at a time before they are
due. A payment of Principal only is known as a “Prepayment.” When I
make a Prepayment, I will tell the Note Holder in writing that I am doing
Plaintiff admitted in his deposition that he never made a prepayment. Plaintiff
claimed that he sent two letters to BANA which purported to inform BANA in writing that
he wished to make a prepayment. But, plaintiff admitted that one of the letters was
never produced to defendant and was probably destroyed by viruses on his computer.
Plaintiff admitted that the only writing which purported to inform BANA that he intended
to make a prepayment was his September 1, 2014 letter. This letter stated:
To Whom It May Concern;
This is to notify you, that I want to pay my mortgage on October 1,
2014. This is also to notify you to apply whatever funds are in
escrow to balance. So do what ever [sic] you got to do.
(Doc. # 101, Ex. O.). Plaintiff admitted during his deposition that the letter did not
mention a prepayment nor indicate that he desired to pay his entire mortgage off.
Under Plaintiff’s Deed of Trust, funds in his escrow account must be used for:
(a) taxes and assessments and other items which can attain priority over
this Security Instrument as a lien or encumbrance on the
Property; (b) leasehold payments or ground rents on the Property,
if any; (c) premiums for any and all insurance required by Lender
under Section 5; and (d) Mortgage Insurance premiums, if any, or
any sums payable by Borrower to Lender in lieu of the payment of
Mortgage Insurance premiums in accordance with the provisions
of Section 10.
(Doc. # 101,Deed of Trust, Ex. D, at ¶ 3.). Plaintiff is only entitled to a refund of his
escrow funds once his loan is paid off in full:
Upon payment in full of all sums secured by this Security
Instrument, Lender shall promptly refund to Borrower any [escrow
funds] held by Lender.
(Deed of Trust, Ex. D, at ¶ 3). Plaintiff admitted that the only basis for Count XIX of his
Complaint for violations of 15 U.S.C. § 1639g is the September 1, 2014 letter. Plaintiff
admitted that he purportedly requested a payoff amount from BANA by telling BANA
“Do what ever [sic] you go to do.”
Q: Nowhere in this letter does it request a payoff amount, does it?
A. It doesn’t. It says, “So do whatever you got to do.”
Q: So when you say that you requested a payoff amount, the way you made
that request was by telling the bank “Do whatever you got to do”?
A: Well, I’m assuming they’re banking people and they know how to handle
Q: So that’s a “yes” to my question –
Q: – that the sentence “So do whatever you” –
A: “whatever you got to do.”
Q: – “got to do” was your request for a payoff?
(J. Calon Depo., Ex. A, at 140:22 – 141:13).
BANA states that it is entitled to judgment on Counts I, II, III, IV, V, VI, VII, VIII,
IX, XIV and XVII because all of these claims are based on force-placed insurance
policies and are barred by the doctrine of res judicata. In Williams v. Capella University,
No. 17-cv-0267 (DSD/FLN), 2017 WL 1155735 (D.Minn. Mar.7, 2017), the Court stated:
The doctrine of res judicata bars repetitive suits involving the same
causes of action. See e.g. C.I.R. v. Sunnen, 333 U.S. 591,597 (1948). “A
court must consider three elements to determine whether res judicata will
bar a party from asserting a claim: 1) whether the prior judgment was
entered by a court of competent jurisdiction; 2) whether the prior decision
was a final judgment on the merits; and 3) whether the same cause of
action and the same parties or their privies were involved in both cases.”
Lundquist v. Rice Memorial Hosp., 238 F.3d 975, 977 (8th Cir. 2001).
Id. at *2. The Court in that case found that the plaintiff’s claims were precluded by res
judicata because the
bulk of the factual allegations are literally identical, having been copied
from the earlier complaint. The Northern District of Florida had jurisdiction
over the federal discrimination claims, and those claims were dismissed
with prejudice by that court. Simply put, [plaintiff] cannot relitigate claims
that have already been considered and dismissed with prejudice in
another federal court of competent jurisdiction. Because res judicata bars
those federal claims they must be dismissed once again.
Id. Res judicata applies to judgments in federal class action lawsuits. Cooper v. Fed.
Reserve Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984).
The Court in that case stated that there is “no dispute that under elementary principles
of prior adjudication a judgment in a properly entertained class action is binding on class
members in any subsequent litigation.” Id.
BANA states that it is undisputed that plaintiff is a member of the Settlement
Class in the Hall Class Action lawsuit. BANA also states that plaintiff admitted in his
deposition that his Complaint, “uses essentially the same form, formation and
information that was used in Hall v. Bank of America because of its identical nature to
Plaintiff’s predicament with regard to lender force placed insurance. Plaintiff goes on to
What remains of Plaintiff’s action is identical to what happened to certain
class members in Hall v. Bank of America, which was accepted by the
federal Court and later settled by Bank of America to avoid trial. The only
real difference is that Plaintiff changed the Class nature and identification
of the Hall class action to that of a [sic] individual’s private action. Plaintiff
as an individual is entitled to same protections, access and judgments of
the federal court that are afforded to, the class members in Hall v. Bank of
In the instant case, it is undisputed that a final judgment was entered by a court
of competent jurisdiction, the judgment was a final decision on the merits, plaintiff was a
member of the Settlement Class, he received notice of his rights and he failed to opt out
of the settlement. A large number of the claims that plaintiff is attempting to allege are
identical to the claims in the Hall class action. Thus, the Court finds that plaintiff is
barred by the doctrine of res judicata from reasserting the claims in Counts I, II, III, IV,
V, VI, and IX.
BANA is also entitled to summary judgment on the remaining counts of the
Amended Complaint related to force-placed insurance, because plaintiff contractually
released his claims as a result of the class action settlement. Under the terms of the
Settlement Agreement, all settlement class members:
Fully, conclusively, irrevocably, forever, and finally released, relinquished,
and discharged [BANA] from any and all claims, actions, cause of action,
suits, debts, sums of money, payments, obligations, promises, damages,
penalties, attorney’s fees and costs, liens, judgments, and demands of
any kind whatsoever that each member of the settlement class may have
on or before [July 6, 2015] or may have had in the past, whether in,
arbitration, administrative, or judicial proceedings, whether as individual
claims or as claims asserted on a class basis, whether past or present,
mature or not yet mature, known or unknown, suspected or unsuspected,
whether based on federal, state, or local law, statute, ordinance,
regulations, contract, common law, or any other source, that were or could
have been sought or alleged in the [Class Action] or that relate, concern,
arise from, or pertain in any way to [BANA’s] conduct, policies, or
practices concerning Lender-placed Insurance Policies placed or charged
by the Bank of America Defendants during the Class Period.
Thus, any claims that plaintiff might have had up to and through July 6, 2015 related to
force-placed insurance policies were contractually released. All of plaintiff’s claims
regarding his force-placed insurance predate July 6, 2015. Thus, the Court finds that
BANA is also entitled to summary judgment on Count VII (Violation of Mo.Rev.Stat.
Chapter 407 Merchandising Practices); Count VIII (Violation of Mo.Rev.Stat. Chapter
570 Robbery, Stealing and Related Offenses) and Count XVII (Violations of 15 U.S.C. §
1638 – Transactions Other Than An Open End Credit Plan).
D. Claims Regarding eEasy Rate Reduction
Plaintiff’s loan had a fixed interest rate of 7.625 percent. Plaintiff alleges in his
Amended Complaint that he was entitled to a lower interest rate because of an eEasy
Rate Flier. Plaintiff admits that Count XI (Breach of Contract), Count XII (Breach of
Implied Covenant of Good Faith and Fair Dealing) and Count XIII (Unjust Enrichment) of
his Amended Complaint are based on the eEasy Rate Flier. However, examination of
the eEasy Rate Flier shows that it was only a marketing disclosure and does not purport
to be an agreement or a contract. Plaintiff’s admits that it was not signed by anyone.
Additionally, neither plaintiff’s Note nor Deed of Trust reference the eEasy Rate Flier.
BANA notes that there is no signed document which entitles plaintiff to amend his loan’s
interest rate. Under the Statute of Frauds, a contractual term such as an interest rate,
can only be amended via a signed writing. Mo.Rev.Stat. § 432.010.1. The statute
states in part: “any contract made for the sale of lands . . . or an interest in or
concerning them . . .shall be in writing and signed by the party to be charged therewith. .
. ..” Courts have held that promissory notes secured by real property must comply with
the Statute of Frauds. Accordingly, any amendments to promissory notes must also
comply. Because the eEasy Rate Reduction flier was not signed by any party, it did not
amend any term of plaintiff’s Promissory Note or Deed of Trust. Therefore, the Court
finds that BANA is entitled to summary judgment on Counts XI, XII and XIII.
E. Claims Based On Early Pay Off Clause
In Count XIV(Breach of Contract), plaintiff claims that his loan came with an early
payoff clause and that BANA breached his mortgage contract by failing to honor the
terms of the payoff clause. In Count XIX (Violations of 15 U.S.C. § 1639g – Request for
Payoff Amounts of Home Loan), plaintiff alleges that BANA violated 15 U.S.C.§ 1639g,
by refusing to provide him with a true and accurate pay off amount for his mortgage.
However, the undisputed facts establish that plaintiff did not make a prepayment to
BANA nor properly request a payoff amount. Plaintiff in his deposition admits that his
claims based on the failure to provide him with a payoff amount or allow him to make a
prepayment are based on a letter dated September 1, 2014. The letter stated:
To Whom It May Concern:
This is to notify you, that I want to pay my mortgage on October 1st, 2014.
This is also to notify you to apply whatever funds are in escrow to balance.
So do what ever [sic] you got to do.
(Doc. # 101, Ex. O).
When he was questioned about the September 1, 2014 letter during his
deposition, plaintiff stated:
Q. Now, you’ll agree with me that in Exhibit 6 that I just handed you –
Q. – you say, “This is to notify you, that I want to pay my mortgage on
October 1, 2014,” correct?
Q. You don’t say that you want to make a prepayment?
A. Okay. It should say “mortgage off.”
Q. So it should have said that you wanted to pay your mortgage off?
Q. But that’s not what you actually said?
A. No, I guess not. Okay.
(Doc. # 101, Ex. A - Plaintiff’s Depo., pp. 130-131).
The September 1, 2014 letter does not mention making or wanting to make a
prepayment. Plaintiff admitted during his deposition that he did not make a prepayment.
Q. So you did not send a prepayment to Bank of America?
A. No, because we were supposed to meet at the one up there off of Vivion
Road, the Bank of America, and I was to go in there. We were supposed to
settle the matter that day and then it never happened.
(Doc. # 101, Ex. A – Plaintiff’s Depo. p. 123). Thus, the Court finds that BANA cannot
be liable for failing to honor a prepayment request when plaintiff failed to make or even
request a prepayment on his loan. Accordingly, the Court finds that BANA is entitled to
summary judgment on Count XIV (Breach of Contract).
Under the Truth in Lending Act, “A creditor or servicer of a home loan shall send
an accurate payoff balance within a reasonable time, but in no case more than 7
business days, after the receipt of a written request for such balance from or on behalf
of a borrower.” 15 U.S.C. § 1639g. However, as discussed above, because plaintiff
admitted during his deposition that the September 1, 2014 letter did not contain a
request for a payoff amount, the Court finds that BANA is entitled to summary judgment
on Count XIX (Violations of 15 U.S.C. § 1639g – Request for Payoff Amounts of Home
Accordingly, for the reasons stated above, the Court hereby GRANTS BANA’s
Motion for Summary Judgment (Doc. # 101).
Accordingly, for the reasons stated above, the Court hereby DENIES Plaintiff’s
Motion for Extension of Time to Complete Discovery (Doc. # 98); DENIES AS MOOT
Plaintiff’s Motion to Compel (Doc. # 99); GRANTS Bank of America N.A. (“BANA’s”)
Motion for Summary Judgment (Doc. # 101); and DENIES plaintiff’s Motions for
Protective Order (Docs. # 105, 107).
Date: September 18, 2017
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
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