Muheljic et al v. Bank of America, N.A.

Filing 21

INITIAL CASE MANAGEMENT ORDER: Motion to Amend Pleadings due by 6/1/2015. Discovery due by 5/1/2015. Dispositive Motions due by 8/3/2015. Non-Jury Trial set for 12/8/2015 at 9:00 AM in Cookeville before District Judge Kevin H. Sharp. Pretrial Conference set for 11/2/2015 at 2:30 PM in Cookeville before District Judge Kevin H. Sharp. Signed by District Judge Kevin H. Sharp on 8/4/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
SUAD MUHELJIC AND
RIAD MUHELJIC,
Plaintiffs,
V.
BANK OF AMERICA, N.A.,
Defendant.

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Case No. 2:14-cv-00051
Judge Sharp

INITIAL CASE MANAGEMENT ORDER
Pursuant to LR 16.01(d), the following Initial Case Management Plan is adopted.
1. Jurisdiction:
There is a dispute as to the jurisdiction of this Court in this case. This matter was
originally filed by Plaintiffs in the Chancery Court for White County, Tennessee on April 22,
2014. On May 27, 2014, Defendant filed a Notice of Removal to this Court, claiming this court
has jurisdiction under 28 U.S.C. § 1332(a). Plaintiffs timely filed their Motion to Remand to
State Court, which is pending.
2. Plaintiffs’ theory of the case:
Plaintiffs filed their Complaint in the Chancery Court for White County,
Tennessee alleging breach of contract, violation of the Tennessee Consumer Protection Act,
unconscionability, promissory estoppel, negligent misrepresentation, and equitable estoppel.
Defendant committed acts and omissions while servicing Plaintiffs’ mortgage loan and
ultimately selling Plaintiffs’ home at foreclosure. Defendant participates in the Home
Affordable Modification Program (herein after “HAMP”), administered by home mortgage

servicers in conjunction with the federal government. In 2012, Plaintiffs fell behind in their
mortgage payments and requested that Defendant modify their mortgage loan. Plaintiffs
corresponded with Defendant’s representatives and provided documentation. While their
application for modification was still pending, Plaintiffs received notices of substitute trustee’s
sale. Plaintiffs were assured by Defendant’s representative that the foreclosure sale was
cancelled. When Plaintiffs consulted with a bankruptcy attorney, they learned the foreclosure
sale had not been cancelled as they were promised. At that time, they had not received a decision
on their request for modification.
Plaintiffs request equitable relief in the form of rescission of the foreclosure sale and
reinstatement of their mortgage.
3. Defendant’s theory of the case:
Bank of America asserts that all of Plaintiffs’ claim fail as a matter of law. On
June 23, 2014, BANA filed a motion to dismiss Plaintiffs’ Complaint for failure to state a claim.
[Doc 6]. BANA’s motion is currently pending before the Court.
Plaintiffs are not third-party beneficiaries under the National Mortgage Settlement or
HAMP and accordingly, the breach of contract claim fails as a matter of law. Similarly, good
faith and fair dealing is not a stand-alone claim under Tennessee law and must fail. Plaintiffs’
claims under the Tennessee Consumer Protection Act also fail because disputes arising over
repossession of the collateral securing a loan are not trade and commerce and do not fall under
the purview of the TCPA. Plaintiffs’ claim for unconscionability fails because the Plaintiffs were
in default and Bank of America was entitled to foreclose based on the loan agreement. Plaintiffs’
promissory estoppel claim should be dismissed because an express contract governs the
relationship between the parties and a claim for promissory estoppel cannot stand in the face of

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an express contract. Finally, Plaintiffs’ claims for negligent misrepresentation and equitable
estoppel should be dismissed because both claims require misrepresentation of a past or present
material fact, not a future intention.
4. Identification of the issues:
A. Plaintiffs’ identification of the issues:
I. Whether Defendant breached the implied covenant of good faith
and fair dealing?
II. Whether the foreclosure should be rescinded under the theory of
promissory estoppel?
III. Whether the foreclosure should be rescinded under the theory of
negligent misrepresentation?
IV. Whether the foreclosure should be rescinded under the theory of
equitable estoppel?
V. What relief are Plaintiffs entitled to?
B. Defendant’s identification of the issues:
None of the material issues in this lawsuit have been resolved by
agreement of the parties. Therefore, the issues of liability and damages are unresolved. BANA
asserts that Plaintiffs have failed to state a claim upon which relief can be granted. BANA’s
motion to dismiss is currently pending before the Court.
5. Need for other claims or special issues under Rules 13-15, 17-21, and
Rule 23 of the Federal Rules of Civil Procedure:
The Parties do not anticipate at this time any counter-claims, cross-claims, third-party
claims, joinder of other parties or claims, class action certification, or the need for resolution of
any issues arising under the above-cited rules.

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6. Witnesses:
Plaintiffs currently intend to call as witnesses themselves and an employee of the office
of former bankruptcy attorney Arnold Lefkovitz. In addition, Defendant identifies a corporate
representative of Bank of America as a witness.
7. Initial Disclosures and Staging of Discovery:
The Parties will make initial disclosures on or before August 18, 2014. All discovery
shall be completed by both Parties no later than May 1, 2015. Prior to the filing
of any discovery-related motion, the Parties will schedule and conduct a telephone
conference with the Magistrate Judge. The Counsel requesting the conference shall check with
opposing counsel as to their availability before setting a time certain with the Court.
8. Dispositive motions:
The Parties shall file any and all dispositive motions with the Court no later than
August 3, 2015. Responses to such motions shall be filed no later than September 2, 2015. The
Parties shall have the opportunity to file a reply to any response no later than September 16,
2015. If dispositive motions are filed early, the response and reply dates are moved up
accordingly. The motion and response memoranda are limited to twenty-five pages and the
reply, if a reply is filed, is limited to five pages, absent Court permission for longer pleading.
9. Other deadlines:
June 1, 2015 is the final deadline for all motions to amend, or to add parties.
10. Subsequent case management conferences:

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11. Alternate dispute resolution:
The Parties have discussed possible settlement without success. It is unknown at
this time whether there is any prospect of settlement. Consequently, it is unknown if
there is any need for a settlement conference or a need for utilization of alternate dispute
resolution techniques.
12. Consent to trial before the Magistrate Judge:
The Parties do not consent to trial before the Magistrate Judge.
13. Target trial date:
The Parties estimate that two days will be necessary for trial. The non-jury trial is set for
December 8, 2015, at 9:00 a.m. with the final pretrial set for November 2, 2015, at 2:30 p.m.
Both set in Cookeville, Tennessee.
It is so ORDERED:

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KEVIN H. SHARP
United States District Judge

APPROVED FOR ENTRY:
/s/ Marla K. Williams
Marla K. Williams, Esq., BPR No. 014167
Legal Aid Society of Middle TN &
the Cumberlands
9 S. Jefferson Ave., Ste. 102
Cookeville, TN 38501
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Claire Bishop Abely, BPR No. 031516
Legal Aid Society of Middle TN &
the Cumberlands
300 Deaderick Street

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Nashville, TN 37201
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

/s/Jessica Jernigan-Johnson
Jessica Jernigan-Johnson, Esq., BPR No. 32192
Bradley Arant Boult Cummings LLP
1600 Division St., Suite 700
Nashville, TN 37203-0025
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Certificate of Service
I hereby certify that a true and correct copy of the foregoing Initial Case Management
Order has been served via the Court’s electronic filing system upon attorney for Defendant:
Harold Frederick Humbracht, Jr. , Esq., BPR No. 002993
Bradley Arant Boult Cummings LLP
1600 Division St., Suite 700
Nashville, TN 37203-0025
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
on this the 24th day of July, 2014.
/s/ Marla K. Williams

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