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

Filing 49

CORRECTED MEMORANDUM: Because of a clerical error, the Memorandum mistakenly filed at Docket No. 47 is hereby replaced with this Memorandum. Signed by District Judge Todd J. Campbell on 7/28/14. (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
NASHVILLE DIVISION
DARICE E. SILVESTRO, et al.

)
)
) NO. 3-13-0066
) JUDGE CAMPBELL
)

v.
BANK OF AMERICA, N.A.

MEMORANDUM
Because of a clerical error, the Memorandum mistakenly filed at Docket No. 47 is hereby
replaced with this Memorandum.
Pending before the Court is Defendant’s Motion for Summary Judgment (Docket No. 36).
For the reasons stated herein, Defendant’s Motion is GRANTED in part and DENIED in part.
Plaintiffs’ claims for mental anguish and emotional distress are DISMISSED.
FACTS
This action arises from a mortgage loan from Defendant to Plaintiff Darice Silvestro in 2007
and Plaintiffs’ attempts to obtain a loan modification. Plaintiffs allege that Defendant, through its
representatives, negligently and intentionally misrepresented material facts to Plaintiffs, upon which
Plaintiffs reasonably relied, causing Plaintiffs to suffer damages.
Defendant argues that it never made any false statement of material fact to Plaintiffs, that
Plaintiffs did not rely upon any alleged misstatements, and that Plaintiffs have suffered no damages
which are attributable to Defendant.

Defendant seeks summary judgment on Plaintiffs’

misrepresentation claims.
SUMMARY JUDGMENT
Summary judgment is appropriate where there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. State
Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary

judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this
burden by presenting affirmative evidence that negates an element of the non-moving party’s claim
or by demonstrating an absence of evidence to support the nonmoving party’s case. Id.
In deciding a motion for summary judgment, the Court must review all the evidence, facts
and inferences in the light most favorable to the nonmoving party. Van Gorder v. Grand Trunk
Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not, however, weigh the
evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court determines whether sufficient evidence
has been presented to make the issue of fact a proper jury question. Id. The mere existence of a
scintilla of evidence in support of the nonmoving party’s position will be insufficient to survive
summary judgment; rather, there must be evidence on which the jury could reasonably find for the
nonmoving party. Rodgers, 344 F.3d at 595.
MISREPRESENTATION
In order to prove a claim based on intentional misrepresentation, a plaintiff must show that:
(1) the defendant made a representation of an existing or past fact; 2) the representation was false
when made; 3) the representation was in regard to a material fact; 4) the false representation was
made either knowingly or without belief in its truth or recklessly; 5) the plaintiff reasonably relied
on the misrepresented material fact; and 6) the plaintiff suffered damage as a result of the
misrepresentation. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 311 (Tenn. 2008);
Roopchan v. ADT Sec. Sys., Inc., 781 F.Supp.2d 636, 649 (E.D. Tenn. 2011).

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Similarly, to succeed on a claim for negligent misrepresentation, a plaintiff must establish
that the defendant supplied information to the plaintiff; the information was false; the defendant did
not exercise reasonable care in obtaining or communicating the information; and the plaintiff
justifiably relied on the information. Walker, 249 S.W.3d at 311; Evans v. Walgreen Co., 813
F.Supp.2d 897, 933-34 (W.D. Tenn. 2011).
The Court finds that there are genuine issues of material fact as to whether Defendant
misrepresented (negligently or intentionally) material information to Plaintiffs. For example, Ms.
Silvestro testified that Defendant’s representatives promised her a permanent home loan
modification, then stated that she was not approved for a home loan modification, and then stated
that her loan application was still active. Docket No. 45. Ms. Silvestro also testified that
Defendant’s representative told her, after her three-month trial payment period was over, to continue
making the trial payments. Id. Ms. Silvestro stated that she was told again that her loan
modification was not approved and then that a loan modification had been approved by Freddie
Mac. Id. Ms. Silvestro testified that there were numerous times when she was told by Defendant’s
representatives that her loan modification application was not approved and then that it was still
under review. Id. Plaintiffs also have presented evidence that, on August 10, 2011, Defendant
represented to Plaintiff Silvestro that she was up to date and current on her home loan payments
(Docket No. 46-6), which was false.
These alleged representations from Defendant include present, existing, and future facts
which cannot all have been true. Many of these representations were misleading at best. Plaintiffs
have presented sufficient evidence to show genuine issues of material fact as to whether Defendant’s
representations were false.

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Defendant argues that Plaintiffs cannot demonstrate justifiable reliance. Whether a person’s
reliance on a representation is reasonable generally is a question of fact requiring the consideration
of a number of factors. Davis v. McGuigan, 325 S.W.3d 149, 158 (Tenn. 2010); Securamerica
Business Credit v. Schledwitz, 2014 WL 1266121 at * 21 (Tenn. Ct. App. March 28, 2014).1
The Court finds that Plaintiffs have created a genuine issue of material fact by stating that
if Defendant had told her in the beginning that she could not qualify for a loan modification, Ms.
Silvestro would have started either to refinance her home or to rent it to supplement her income so
that she would not lose it. Ms. Silvestro also testified that she could have pursued a short sale or
deed in lieu of foreclosure if she had known Defendant’s representations were not true.
Finally, Defendant argues that Plaintiffs cannot identify any damages attributable to
Defendant. Plaintiff has not sufficiently presented evidence as to their claims for mental anguish
and emotional distress, and those claims are DISMISSED.
Plaintiffs have explained, however, how they relied on Defendant’s alleged
misrepresentations to their detriment with regard to their other alleged damages. Plaintiffs will have
to prove, at trial, that their alleged damages were proximately caused by Defendant’s
representations; but Plaintiffs have sufficiently alleged such damages to survive summary judgment.

CONCLUSION

1

Those factors include the plaintiff’s sophistication and expertise in the subject
matter, the type of relationship - fiduciary or otherwise - between the parties, the availability of
relevant information, any concealment of the misrepresentation, any opportunity to discover the
misrepresentation, which party initiated the transaction, and the specificity of the
misrepresentation. Davis, 325 S.W.3d at 158.

4

For all these reasons, Defendant’s Motion for Summary Judgment (Docket No. 36) is
GRANTED in part and DENIED in part. Plaintiffs’ claims for mental anguish and emotional distress
are DISMISSED.
IT IS SO ORDERED.
___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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