Alberts v. BAC Home Loans Servicing, LP et al

Filing 21

ORDER: Granting 8 Motion to Dismiss for Failure to State a Claim. Plaintiff shall have 30 days to file an amended complaint. Failure to file an amended complaint curing the deficiencies within 30 days shall result in dismissal with prejudice and judgment in favor of defendants. Signed on 1/10/2012 by U.S. District Judge Michael R. Hogan. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
STACIE ALBERTS, an Oregon resident,
Case No. ll-6304-HO
Plaintiff,
ORDER
vs.
BAC HOME LOANS SERVICING, L.P., and
BANK OF AMERICA, N.A.,
Defendants.
Plaintiff brings this action alleging claims for specific
performance, negligent misrepresentation, breach of the covenant of
good faith and fair dealing, and lack of standing.
Plaintiff alleges that defendants service plaintiff I s mortgage
and that she has been seeking modification of the loan terms since
July 2010.

Plaintiff alleges that defendants informed her that the

modification had been approved sometime after March 15,

ORDER - page 1

2011.

However,

plaintiff asserts that numerous attempts to obtain the

loan modification information were unsuccessful and that defendants
have now scheduled a

sale of her property.

Plaintiff asserts

entitlement to specific performance of the loan modification and
that

she

relied

on

the

representation

that

a

modification

is

forthcoming.
Plaintiff

also

asserts

that

sh~

requested

information,

including the original mortgage note, pursuant to the Real Estate
Settlement Procedures Act

(RESPA)

provided the information requested.

and that defendants have not
Plaintiff .alleges that she

entitled to reconveyance of the trust deed and

a finding that the

note is paid in full as defendant cannot produce the requested
information.
Defendants move to dismiss contending:
claim

(1) plaintiff's first

specific performance and third claim for breach of the

implied covenant of good faith and fair dealing do not allege an
enforceable contract requiring modification of her loan terms;
plaintiff's

negligent

misrepresentation

claim

fails

(2)

because

defendant owed plaintiff no legal duty; and (3) plaintiff's RESPA
claim does

not

identify a

qualified written request or actual

damages.
Defendant asks the court to take judicial notice of the Deed
of Trust,

the assignment of the deed of trust,

appointment of a

successor Trustee, the notice of default and election to sell, and

ORDER - page 2

a document printed from the Oregon State Bar webiste showing
plaintiff's counsel (who has since withdrawn) as being suspended.
Plaintiff objects contending the signatures of Christina Balandran,
on behalf of BAC Home Loans

Servicing,

appear to be

forged.

However, the publicly recorded documents are notarized and the type
of documents that are subject to judicial notice.

Defendant's

request ('10) is granted.
Plaintiff defaulted on her loan beginning October 1, 2009.
The deed of trust securing the loan lists Mortgage Elect.ronic
Registration Systems (MERS) as a beneficiary as nominee for the
lender, Home 123 Corpo.rat ion.

MERS transferred its interest to

defendant BAC Home Loans Servicing and recorded such transfer on
March

8,

2010.

Also

on March

8,

2010 r

ReconTrust Company the successor trustee.

defendant

appointed

ReconTrust recorded a

notice of default and election to sellon April 20, 2011.

The sale

of the property has yet to take place.
Plaintiff's complaint fails to identify any agreement, much
less its terms, requiring defendant to modify her loan terms and in
response to the motion to dismiss, plaintiff argues she has not had
an opportunity to depose defendants' employees.

Although pleading

requirements are minimal, complaints cannot be used as a fishing
expedition.

Plaintiff must allege an enforceable agreement upon

which to base her claims for specific performance and breach of the
duty of good faith and fair dealing.

ORDER - page 3

Moreover,

to the extent

plaintiff relies on oral representations to modify the loan, such
agreement is barred by the statute of frauds.

ORS § 41.580(1)h).

Plaintiff's response demonstrates that there are no set of facts
that can be reasonably plead demonstrating the viability of her
specific performance and breach of good faith and fair dealing
claims.

The

motion

to

dismiss

those

claims

is

granted with

prejudice.
To succeed on her negligent misrepresentation claim premised
on purely economic harm,

pla'intiff must plead and prove "[ s lome

source of a duty outside the common law of negligence." Hale v.
Groce, 304 Or. 281, 284 (1987).

Liability for purely economic harm

"must be predicated on some duty of the negligent actor to the
injured party beyond the common law duty to exercise reasonable
care to prevent foreseeable harm."
of Bronson, 315 Or. 149, 159 (1992).

Plaintiff has not alleged

any duty beyond the common law of negligence.

Plaintiff's response

again resorts to a request to discover the facts upon which to
predicate
not

be

However ,

al~egations

filed
it

of a duty.

purely

is

as

unclear

a

As noted above, a complaint may

vehicle

for

a

fishing

if plaintiff could allege

expedition.
harm to her

property beyond purely economic harm and, therefore, dismissal of
this claim is without prejudice.
Plaintiff's

claim

establishing she made

ORDER - page 4

under
a

the

RESPA

fails

to

allege

facts

qualified written request to the loan

servicer regarding the servicing of the loan seeking documents
covered by RESPA as required by 12 U.S.C. § 2605(e) (1) (A) and (B).
Moreover,

damages under RESPA are limited to actual damages or

statutory damages which plaintiff has failed to plead as well.
While the purported request attached to the complaint appears to
request documents unrelated to loan servicing, such as creation of
the loan itself, plaintiff shall have leave to amend,
reasonably

do

so,

to

allege

facts

demonstrating

if she can
she

made

a

qualified written request to the appropriate entity with resulting
damages based on a failure to respond.

CONCLUSION
For the reasons stated above, defendants' motion to dismiss
(#8) is granted.

To the extent plaintiff can cure the deficiencies

noted above,

plaintiff shall

complaint.

Failure

deficiencies

within

file
30

days

have
an

30

days

amended
shall

to

file

complaint

result

in

an amended
curing

dismissal

the
with

prejudice and judgment in favor of defendants.

DATED this

-4

day of

Jan~ary,

2012.
Judge

ORDER - page 5