WULF v. BANK OF AMERICA, N.A. et al
ORDER THAT UPON CONSIDERATION OF DEFENDANTS' MOTION TO DISMISS (DOC. NO. 13), THE PLAINTIFF'S MEMORANDUM IN OPPOSITION, DEFENDANTS' REPLY THERETO, THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE ELIZABETH T. HEY (DOC. NO. 29), THE DE FENDANTS' OBJECTIONS THERETO, AND PLAINTIFF'S RESPONSE TO THE DEFENDANTS' OBJECTIONS, AND AFTER ORAL ARGUMENT HELD ON 5/26/2011, IT IS HEREBY ORDERED THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED AS FOLLOW AS OUTLINED HEREIN. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 6/27/2011. 6/28/2011 ENTERED AND COPIES E-MAILED. (ems)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD M. WULF, JR.
BANK OF AMERICA, N.A.,
AND NOW, this 27th day of June, 2011, upon
consideration of Defendants’ Motion to Dismiss (Docket No. 13),
the plaintiff’s memorandum in opposition, defendants’ reply
thereto, the Report and Recommendation of Magistrate Judge
Elizabeth T. Hey (Docket No. 29), the defendants’ objections
thereto, and plaintiff’s response to the defendants’ objections,
and after oral argument held on May 26, 2011, IT IS HEREBY
ORDERED that the Report and Recommendation is APPROVED and
ADOPTED as follows.
The defendants’ motion to dismiss is granted in part
and denied in part.
To the extent defendants seek dismissal of a
separate claim for breach of the covenant of good faith and fair
dealing (fourth claim for relief), the motion is granted.
However, rather than requiring amendment, the allegations in that
count are incorporated into the breach of contract count.
To the extent the defendants seek dismissal of the
plaintiff’s claims for violation of Pennsylvania’s Unfair Trade
Practice and Consumer Protection Law (“UTPCPL”) and fraud (second
and third claims of relief), the motion is granted and these
claims are dismissed because they are barred by the economic loss
The motion is denied with respect to the breach of
contract and TILA claims.
As the Court reads the language of the
mortgage agreement, the Court cannot say that the plaintiff
cannot recover on the breach of contract claim.
The title of the
section is “Fire, Flood and Other Hazard Insurance.”
then goes on to discuss hazards, casualties and contingencies
Arguably, this is separate from flood insurance
that is discussed in the sentence starting “[b]orrower shall also
insure all improvements on the Property, whether now in existence
or subsequently erected, against loss by floods to the extent
required by the Secretary.”
What is required by the Secretary is insurance “in an
amount at least equal to either the outstanding balance of the
mortgage, less estimated land costs, or the maximum amount of the
NFIP insurance available with respect to the property
improvements, whichever is less.”
The Court agrees with the
defendants that the outstanding principle balance of the loan is
the minimum, not maximum under the HUD regulations.
could interpret to the extent “required” by the Secretary to
refer to the minimum, which would be the outstanding balance of
The Court was informed at oral argument that the
language at issue is from an FHA form that is required for all
The Court was also told that FEMA recommends that
lenders require full replacement value when lending in a flood
It does seem incongruous that a lender would not be
able to following FEMA’s recommendation in connection with an FHA
However, none of this was briefed by the parties and the
Court is reluctant to make any conclusive decision on this point.
Although the Court is skeptical of a TILA claim even if
there is a breach of contract claim, the Court will not dismiss
the TILA claim at this point.
The parties are hereby ordered to send a letter to the
Court on or before July 8, 2011, explaining to the Court how the
parties would like to proceed with the litigation at this point.
Do the parties want to move to the class certification stage or
do they want to submit cross-motions for summary judgment on the
breach of contract claim?
BY THE COURT:
/s/ Mary A. McLaughlin
MARY A. McLAUGHLIN, J.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?