Angino et al v. Santander Bank, N.A.

Filing 42

ORDER - It is hereby ORDERED that: 1. Anginos' objs 56 SUSTAINED to limited extent ct orders into paras of R&R 35 @ 1-2 of Chief Magistrate Judge Carlson to be STRICKEN w/ Anginos' objs otherwise overruled; 2. ADOPTING Chief Magi strate Judge Carlson's REPORT 35 as modified by Para 1.; 3. GRANTING Santander's MTD 14 & DISMISSING Anginos' complaint 1 as follows... (see Paras 3a & 3b for specifics).; 4. Granting Anginos leave to amend pleading w/in 20 days of date of this order consistent w/ Para 3 above & report 35 of Chief Magistrate Judge Carlson - in absence of timely filed amended complaint Cts II & III will be dismissed w/ prejudice & Clrk of Ct will be directed to close case. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 2/2/16. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD ANGINO and ALICE
ANGINO,
Plaintiffs
v.
SANTANDER BANK, N.A.,
Defendant

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CIVIL ACTION NO. 1:15-CV-438
(Chief Judge Conner)

ORDER
AND NOW, this 2nd day of February, 2016, upon consideration of the
complaint (Doc. 1) of plaintiffs Richard Angino and Alice Angino (collectively, the
“Anginos”), wherein the Anginos assert various claims against defendant Santander
Bank, N.A. (“Santander”), deriving predominately from Santander’s alleged failure
to accommodate the Anginos’ request to modify certain loan documents to include
concessions favorable to the Anginos, (id. ¶¶ 1-60), and further upon consideration
of the report (Doc. 35) of Chief Magistrate Judge Martin C. Carlson, recommending
that the court grant Santander’s motion (Doc. 14) brought pursuant to Federal Rule
of Civil Procedure 12(b)(6), see FED. R. CIV. P. 12(b)(6), and dismiss the Anginos’
complaint (Doc. 1), wherein the magistrate judge opines specifically that: (1) the
Anginos’ breach of contract claim pursuant to the Dodd-Frank Wall Street Reform
and Consumer Protection Act (“Dodd-Frank”), 12 U.S.C. § 5301 et seq., and the
Home Affordable Modification Program (“HAMP”), a federal foreclosure mitigation
program, is legally untenable because neither HAMP nor Dodd-Frank creates a
private cause of action; (2) the Anginos’ breach of contract claim grounded in

“Impossibility under State law” fails because the doctrine of impossibility is not an
independent cause of action but rather a defense to contract liability; (3) the
Anginos cannot state a claim for breach of the contractual duty of good faith based
solely upon Santander’s refusal to waive its own contractual rights; (4) the Anginos
fail to plead requisite elements of a claim arising under the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681; (5) the Anginos fail to state facts demonstrating
fraudulent or deceptive acts in support of their claims for common law fraud and
violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”), 73 PA. STAT. AND CONS. STAT. ANN. § 201-1 et seq.; and (6) the Anginos’
common law claim for intentional infliction of emotional distress fails because the
institution of mortgage foreclosure proceedings does not constitute “outrageous”
conduct, (see Doc. 35 at 12-31), and the court noting that the Anginos have filed
objections (Doc. 36) to the report, see FED. R. CIV. P. 72(b)(2), wherein the Anginos
restate many of the same arguments raised in opposition to Santander’s underlying
Rule 12 motion, and the court further noting that said objections have been fully
briefed by the parties, (see Docs. 37-39), and, following a de novo review of the
contested portions of the report, see Behar v. Pa. Dep’t of Transp., 791 F. Supp. 2d
383, 389 (M.D. Pa. 2011) (citing 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d
1099, 1106 n.3 (3d Cir. 1989)), and applying a clear error standard of review to the
uncontested portions, see Cruz v. Chater, 990 F. Supp. 375, 376-78 (M.D. Pa. 1999),
the court being in agreement with the Anginos to the limited extent the court finds
that the suppositional narrative set forth in the report’s introductory paragraphs—
pertaining to Richard Angino’s professional career and the couple’s presumptive
2

economic ambitions—is without objective support in the Anginos’ pleading and
must be stricken from the report, but the court otherwise finding Judge Carlson’s
legal analysis to be thorough, well-reasoned, and fully supported by the record, and
thus finding the Anginos’ objections to the report’s ultimate recommendations to be
without merit,1 and the court concluding that the Anginos’ breach of contract claim
and intentional infliction of emotional distress claim are legally rather than factually
deficient and thus incurable, but otherwise concluding, in answer to the Anginos’
implicit plea for leave to amend, (see Doc. 36 at 22; see also Doc. 41), that the

1

One central conclusion warrants further explication. The Anginos hold fast
to their contention that several circuit courts, as well as one district court within
this circuit, have held that HAMP and Dodd-Frank together support their private
cause of action. (See Doc. 36 at 14-15, 21-22 (citing Corvello v. Wells Fargo Bank,
N.A., 728 F.3d 878 (9th Cir. 2013); Young v. Wells Fargo Bank, N.A., 717 F.3d 224 (1st
Cir. 2013); Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012); Wilson v.
Bank of Am., N.A., 48 F. Supp. 3d 787 (E.D. Pa. 2014))). The Anginos contend that
the magistrate judge erred by failing to “even discuss” the purportedly dispositive
decisions. (Doc. 36 at 14). The Anginos, however, substantively misapprehend the
cited cases. These cases do not hold that HAMP and Dodd-Frank create a separate
cause of action; indeed, two of the four opinions expressly acknowledge that federal
law does not create such a right, see Wigod, 673 F.3d at 559 n.4, 581-85; Wilson, 48 F.
Supp. at 809-13, and another declines to rule on the issue, see Young, 717 F.3d at
236 n.10. Instead, the decisions consider whether banks become contractually
obligated to offer mortgage modifications to borrowers that separately agree to
HAMP trial period plans (“TPP”) and fully comply with the TPP’s provisions. See
Corvello, 728 F.3d at 883-85; Young, 717 F.3d at 231-36; Wigod, 673 F.3d at 559-66 &
n.4; Wilson, 48 F. Supp. 811-13. The Anginos do not allege that they ever entered
into a TPP with Santander. Hence, the cases highlighted by the Anginos are
inapposite.
3

Anginos should be afforded one final opportunity to amend their pleading to the
extent they are able to cure the substantial deficiencies in their FCRA and
UTPCPL claims, it is hereby ORDERED that:
1.

The Anginos’ objections (Doc. 56) are SUSTAINED to the limited
extent that the court orders to be STRICKEN the introductory
paragraphs of the report (Doc. 35 at 1-2) of Chief Magistrate Judge
Carlson. The Anginos’ objections (Doc. 56) are otherwise overruled.

2.

Chief Magistrate Judge Carlson’s report (Doc. 35) is ADOPTED as
modified by paragraph 1.

3.

Santander’s motion (Doc. 14) to dismiss is GRANTED and the Anginos’
complaint (Doc. 1) is dismissed as follows:
a.

b.
4.

The Anginos’ breach of contract claim (Count I) and intentional
infliction of emotional distress claim (Count IV) are DISMISSED
with prejudice.
The remainder of the Anginos’ complaint (Counts II, III) is
DISMISSED without prejudice.

The Anginos are granted leave to amend their pleading within twenty
(20) days of the date of this order, consistent with paragraph 3 above
and the report (Doc. 35) of Chief Magistrate Judge Carlson. In the
absence of a timely filed amended complaint, Counts II and III will be
dismissed with prejudice and the Clerk of Court will be directed to
close this case.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania