John Michael LeBlanc v. Bank of America, N.A. et al

Filing 20

ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jon Phipps McCalla on 06/18/2013. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JOHN MICHAEL LeBLANC,
Plaintiff,
v.
BANK OF AMERICA, N.A.;
BAC HOME LOANS SERVICING, LP
f/k/a COUNTRYWIDE HOME LOANS
SERVICING, LP, CORP.; and
RUBIN LUBLIN TN, PLLC,
Defendants.

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2:13-cv-02001-JPM-tmp

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT BANK OF AMERICA’S MOTION TO DISMISS

Before the Court is the Motion to Dismiss of Defendant Bank
of America, N.A.1 (“Bank of America”), filed January 8, 2013.
(ECF No. 5.)

Plaintiff John Michael LeBlanc (“LeBlanc”)

responded in opposition on February 7, 2013.

(ECF No. 9.)

of America filed a Reply on February 21, 2013.

Bank

(ECF No. 13.)

For the following reasons, Bank of America’s Motion to
Dismiss is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
This case arises out of the attempted foreclosure of
LeBlanc’s home, which is located at 3786 Old Brownsville Road,
1

On July 1, 2011, Bank of America, N.A., and BAC Home Loans Servicing, LP,
merged. (ECF No. 5 at 1 n.1.) Bank of America, N.A., therefore, “responds
for itself and as successor by merger to BAC Home Loans Servicing, LP.”
(Id.)

Memphis, Tennessee 38135 (the “Brownsville Property”).

(See

Compl., ECF No. 1-2, at PageID 9-18; ECF No. 1 at 2.)2

The

following facts are alleged in LeBlanc’s Complaint.
LeBlanc purchased the Brownsville Property in 2005.
No. 1-2 ¶ 8.)

(ECF

In 2006, LeBlanc sought to refinance his home

through a loan with Countrywide Home Loans, Inc.

To

(Id.)

obtain the loan, LeBlanc executed a promissory note (the
“Note”), a deed of trust (the “Deed of Trust”), and other
related documents.

(Id.)

The adjustable-rate loan had a

principal amount of approximately $114,300 at an initial annual
percentage rate of 10.8% and a maximum annual percentage rate of
17.8% over a thirty-year term.

(Id. ¶ 9.)

the loan were approximately $1,071.21.

Monthly payments on

(Id. ¶ 10.)

“Defendant

Bank of America later became the servicer of the loan.”

(Id.

¶ 8.)
After experiencing a period of financial difficulty “around
2007 or 2008,” LeBlanc sought a loan modification from Bank of
America, which is a participant in the Home Affordable Mortgage
Program (“HAMP”).3

(Id. ¶¶ 11-12.)

eligible for relief under HAMP.

LeBlanc asserts that he was

(Id. ¶ 16.)

2

In approximately

When Electronic Case Filings contain multiple documents, the Court will
refer to the Page Identification (“PageID”) numbers on the top right of the
document.
3
Bank of America asserts that there is no private right of action under HAMP.
(ECF No. 5-1 at 5.) The Court need not decide whether there is a private
right of action under HAMP because it does not appear that LeBlanc bases his
claims on his alleged eligibility for a loan modification under HAMP. (See
Compl., ECF No. 1-2, at PageID 9-18.)

2

2009, LeBlanc began receiving assistance with his request for a
loan modification from Ms. Jackson, a housing counselor at the
Frayser Community Development Corporation (the “FCDC Housing
Counselor”), and was granted a temporary loan modification.
(Id. ¶¶ 17-18.)

LeBlanc’s monthly payments were reduced to

$769.22, and he executed paperwork to have this amount drafted
automatically from his bank account on a monthly basis.
¶¶ 18-19.)

(Id.

LeBlanc asserts that Bank of America made monthly

drafts of this amount for over two years, occasionally drafting
this amount twice in the same month.

(Id. ¶ 19.)

During this time, LeBlanc continued to seek a permanent
modification of his loan and had the FCDC Housing Counselor call
Bank of America every month to check the status of his
application for a permanent loan modification.

(Id. ¶¶ 20-21.)

During one of these calls, a Bank of America representative told
LeBlanc and the FCDC Housing Counselor that LeBlanc would
receive a permanent loan modification and that he “should
temporarily stop making payments until [Bank of America] could
calculate the correct payment for the permanent loan
modification.”

(Id. ¶ 22.)

The representative further stated

that the recalculation process would take no more than three
months.

(Id. ¶ 23.)

In reliance on the representative’s statement, LeBlanc
stopped making payments on the loan.
3

(Id.)

LeBlanc states that

had he understood that Bank of America was not calculating a new
loan payment in the intervening months, he “would have continued
making payments and avoided the default.”

(Id. ¶ 25.)

Approximately two months after LeBlanc’s conversation with the
Bank of America representative and the FCDC Housing Counselor,
Bank of America asserted that the loan was in default and
threatened to foreclose.

(Id. ¶ 24.)

LeBlanc contacted the

FCDC Housing Counselor for help in stopping the foreclosure.
(Id. ¶ 26.)

LeBlanc then filed for Chapter 13 bankruptcy in

order to halt the foreclosure process.

(Id. ¶ 27.)

After

filing for bankruptcy, LeBlanc and his bankruptcy attorney
continued to seek a permanent loan modification from Bank of
America.

(Id. ¶¶ 28-30.)

On May 12, 2012, Bank of America

denied LeBlanc a permanent loan modification, asserting that
LeBlanc “had not provided the documents it requested.”

(Id.

¶ 31.)
On November 26, 2012, LeBlanc filed a Complaint against
Defendants Bank of America, N.A., BAC Home Loans Servicing, LP
f/k/a Countrywide Home Loans Servicing, LP Corp., and Rubin
Lubin TN, PLLC4 (collectively, “Defendants”), in the Chancery
Court for Shelby County, Tennessee.

(Id. at PageID 9-18.)

Defendants removed this action to federal court on January 2,
4

On March 25, 2013, Defendant Rubin Lublin TN, PLLC (“Rubin Lublin”) moved
for judgment on the pleadings. (ECF No. 18.) On May 13, 2013, this Court
granted Rubin Lublin’s Motion for Judgment on the Pleadings, dismissing all
claims by LeBlanc against Rubin Lublin with prejudice. (ECF No. 19.)

4

2013.

(ECF No. 1.)

On January 8, 2013, Defendant Bank of

America, on behalf of itself and as successor by merger to BAC
Home Loans Servicing, LP, filed the instant Motion to Dismiss
LeBlanc’s Complaint pursuant to Federal Rules of Civil Procedure
8(a) and 12(b)(6).

(See ECF No. 5-1 at 1 n.1.)

II. CHOICE OF LAW
LeBlanc’s Complaint contains the following causes of action
against Defendants:

(1) a violation of Regulation Z, 12 C.F.R.

§ 226.39, of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601
et seq. (ECF No. 1-2 ¶¶ 35-36); a violation of the Tennessee
Consumer Protection Act of 1977 (the “TCPA”), Tenn. Code Ann.
§§ 47-18-101 et seq. (id. ¶¶ 37-43); a common-law breach-ofcontract claim (id. ¶¶ 44-46); (4) a common-law promissoryestoppel claim (id. ¶¶ 47-51); and (5) a common-law negligentmisrepresentation claim (id. ¶¶ 52-55).
This Court has federal-question jurisdiction over LeBlanc’s
TILA claim pursuant to 28 U.S.C. § 1331, and supplemental
jurisdiction over LeBlanc’s state-law claims pursuant to 28
U.S.C. § 1367(a).

“A federal court exercising supplemental

jurisdiction over state law claims is bound to apply the law of
the forum state to the same extent as if it were exercising its
diversity jurisdiction.”

Chandler v. Specialty Tires of Am.

(Tennessee), Inc., 283 F.3d 818, 823 (6th Cir. 2002) (quoting

5

Super Sulky, Inc. v. U.S. Trotting Ass’n, 174 F.3d 733, 741 (6th
Cir. 1999)) (internal quotation marks omitted).
A federal court sitting in diversity applies “state
substantive law and federal procedural law.”

Degussa

Admixtures, Inc. v. Burnett, 277 F. App’x 530, 532 (6th Cir.
2008) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938)).

Further, in diversity matters, a federal court must

apply the choice-of-law rules of the forum state.

Andersons,

Inc. v. Consol, Inc., 348 F.3d 496, 501 (6th Cir. 2003) (citing
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)).
As to contracts, “Tennessee follows the rule of lex loci
contractus, meaning that a contract is presumed to be governed
by the law of the jurisdiction in which it was executed absent a
contrary intent . . . .”

Carbon Processing & Reclamation, LLC

v. Valero Mktg. & Supply Co., 823 F. Supp. 2d 786, 801 (W.D.
Tenn. 2011) (quoting Se. Tex. Inns, Inc. v. Prime Hospitality
Corp., 462 F.3d 666, 672 n.8 (6th Cir. 2006)) (internal
quotation marks omitted).

Tennessee courts will, however,

“honor a choice of law clause if the state whose law is chosen
bears a reasonable relation to the transaction.”

Bourland,

Helfin, Alvarez, Minor & Matthews, PLC v. Heaton, 393 S.W.3d
671, 674 (Tenn. Ct. App. 2012) (quoting Wright v. Rains, 106
S.W.3d 678, 681 (Tenn. Ct. App. 2003)) (internal quotation marks
omitted).

In the instant case, the deed of trust and the note
6

were both executed in Tennessee and do not demonstrate any
intent to apply the law of another jurisdiction.

(See ECF No.

5-2; ECF No. 5-3 at 8.)
As to torts, “Tennessee follows the ‘most significant
relationship’ rule, which provides that ‘the law of the state
where the injury occurred will be applied unless some other
state has a more significant relationship to the litigation.’”
Rhynes v. Bank of Am., No. 12-2683, 2013 U.S. Dist. LEXIS 42713,
at *7 (W.D. Tenn. Mar. 26, 2013) (quoting Hicks v. Lewis, 148
S.W.3d 80, 86 (Tenn. Ct. App. 2003)).

LeBlanc’s alleged

injuries occurred in Tennessee, and neither party asserts that
the law of another jurisdiction should apply.

Accordingly,

LeBlanc’s contract and tort claims will be decided under the
substantive law of Tennessee.5
III. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), a
defendant may move to dismiss a plaintiff’s complaint for
“failure to state a claim upon which relief can be granted.”
Motions to dismiss pursuant to Rule 12(b)(6) test “the
sufficiency of the claim for relief, ‘and as such, [] must be
understood in conjunction with Rule 8(a), which sets out the
federal standard for pleading.’”

Asentinel LLC v. Info Grp.,

Inc., No. 10-2706-D/P, 2011 WL 3667517, at *2 (W.D. Tenn. Aug.
5

Neither party asserts that the law of any other state should apply to the
instant case.

7

3, 2011) (quoting Hutchison v. Metro. Gov’t, of Nashville &
Davidson, Cnty., 685 F. Supp. 2d 747, 748–49 (M.D. Tenn. 2010)).
Pursuant to Rule 8(a), a complaint need only contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Where a

plaintiff asserts a claim of fraud, however, the claim is
subject to the higher pleading standard articulated in Rule
9(b).

See Republic Bank & Trust Co. v. Bear Stearns & Co., 683

F.3d 239, 247 (6th Cir. 2012).

Under Rule 9(b), a plaintiff

must “(1) [] specify the allegedly fraudulent statements; (2) []
identify the speaker; (3) [] plead when and where the statements
were made; and (4) [] explain what made the statements
fraudulent.”

Id.

To survive a motion to dismiss for failure to state a
claim, “[f]actual allegations must be enough to raise a right to
relief above the speculative level and to state a claim to
relief that is plausible on its face.”

Keys v. Humana, Inc.,

684 F.3d 605, 608 (6th Cir. 2012) (alteration in original)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))
(internal quotation marks omitted).

“A claim is plausible on

its face if the ‘plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’”

Ctr. for Bio-Ethical

Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011)
8

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

As a

result, the “complaint must contain either direct or inferential
allegations with respect to all material elements of the claim.”
Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.
2003).
On a motion to dismiss, the court must “construe the
complaint in the light most favorable to the plaintiff, accept
its allegations as true, and draw all reasonable inferences in
favor of the plaintiff.”

In re Travel Agent Comm’n Antitrust

Litig., 583 F.3d 896, 903 (6th Cir. 2009) (quoting Jones v. City
of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)) (internal
quotation marks omitted).

A court may not dismiss a complaint

for failure to state a claim “based on disbelief of a
complaint’s factual allegations.”

Bovee v. Coopers & Lybrand

C.P.A., 272 F.3d 356, 360 (6th Cir. 2001).

The court, however,

“need not accept as true legal conclusions or unwarranted
factual inferences, and [c]onclusory allegations or legal
conclusions masquerading as factual allegations will not
suffice.”

In re Travel Agent, 583 F.3d at 903 (alteration in

original) (citation omitted) (internal quotation marks omitted).
Pursuant to Rule 12(d), where “matters outside the pleading
are presented to and not excluded by the court,” a Rule 12(b)(6)
motion to dismiss will be treated as a Rule 56 motion for
summary judgment.

Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d
9

1102, 1104 (6th Cir. 2010) (quoting Fed. R. Civ. P. 12(d))
(internal quotation marks omitted).

Although “[a]ll parties

must be given a reasonable opportunity to present all the
material that is pertinent to the motion,” Fed. R. Civ. P.
12(d), district courts remain free to refuse to consider
materials outside the pleadings, see Max Arnold & Sons, LLC v.
W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir. 2006).

In

analyzing a Rule 12(b)(6) motion to dismiss, a court may
“consider exhibits attached [to the complaint], public records,
items appearing in the record of the case and exhibits attached
to defendant’s motion to dismiss so long as they are referred to
in the complaint and are central to the claims therein, without
converting the motion” into a motion for summary judgment.
Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th
Cir. 2011) (alteration in original) (quoting Bassett v. Nat’l
Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008))
(internal quotation marks omitted).
IV. ANALYSIS
LeBlanc’s TILA, TCPA, breach-of-contract, promissoryestoppel, and negligent-misrepresentation claims are addressed
in turn.
A. TILA Claim
Pursuant to TILA and Regulation Z, within thirty days of
the transfer of a consumer mortgage loan, the assignee of that
10

loan must notify the borrower that the loan has been
transferred.

15 U.S.C. § 1641(g); 12 C.F.R. § 226.39.

In his Complaint, LeBlanc states that Defendants violated
Regulation Z of TILA “[b]y failing to notify Mr. LeBlanc of the
change in ownership of his mortgage.”

(ECF No. 1-2 ¶ 36.)

Bank

of America argues that LeBlanc has failed to state sufficient
factual information to support a TILA claim or to “allow the
Court to determine if [Bank of America] had to comply with that
statute or whether the statute of limitations applies.”
No. 5-1 at 6.)

(ECF

In response, LeBlanc argues that because the

question of “[i]f, when, and to whom a transfer of ownership of
the loan documents that are the subject of this litigation
occurred is information that is totally within the control of
the Defendant” (ECF No. 9 at 6), LeBlanc’s statement that he was
not notified of the transfer of his mortgage loan is sufficient
to survive Bank of America’s Motion to Dismiss (id. at 6-7).
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has stated a claim for
relief under TILA and Regulation Z.

The relevant information is

within Bank of America’s control and will only become available
to LeBlanc during discovery.

Requiring LeBlanc to provide more

information for his TILA claim at this stage of litigation would
require LeBlanc to plead more information than he could be
expected to have, and would foreclose the possibility of LeBlanc
raising a TILA claim.

See Rhynes, 2013 U.S. Dist. LEXIS 42713,
11

at *41-42; Humphreys v. Bank of Am. Corp., No. 11-2514-STA-tmp,
2012 WL 1022988, at *10 (W.D. Tenn. Mar. 26, 2012).
Accordingly, Plaintiff has sufficiently pled a TILA claim under
Rule 8(a).
Therefore, Bank of America’s Motion to Dismiss is DENIED as
to LeBlanc’s TILA claim.
B. TCPA Claims
In order to recover under the TCPA, a plaintiff must
demonstrate (1) “an ascertainable loss of money or property”;
(2) resulting from “an unfair or deceptive act or practice”; (3)
that is “declared to be unlawful” under the provisions of the
TCPA.

Tenn. Code Ann. § 47-18-109(a)(1).

Tennessee Code

Annotated Section 47-18-104(b)(27) makes unlawful “any act or
practice which is deceptive to the consumer.”

Although Section

47-18-104(b)(27) of the TCPA does not define “unfair or
deceptive,” the Tennessee Supreme Court has described a
deceptive act or practice as “a material representation,
practice, or omission likely to mislead . . . reasonable
consumer[s] to their detriment.”

Fayne v. Vincent, 301 S.W.3d

162, 177 (Tenn. 2009) (alterations in original) (quoting
Ganzevoort v. Russell, 949 S.W.2d 293, 299 (Tenn. 1997))
(internal quotation marks omitted).
TCPA claims are subject to the higher pleading standard
articulated in Rule 9(b).

Parris v. Regions Bank, No. 09-2462,

2011 WL 3629218, at *8 (W.D. Tenn. Aug. 17, 2011); accord Metro.
12

Prop. & Cas. Ins. Co. v. Bell, No. 04-5965, 2005 WL 1993446, at
*5 (6th Cir. Aug. 17, 2005); cf. Glanton v. Bob Parks Realty,
No. M2003-01144-COA-R3-CV, 2005 WL 1021559, at *6 (Tenn. Ct.
App. April 27, 2004) (citing Harvey v. Ford Motor Credit Co., 8
S.W.3d 273, 275 (Tenn. Ct. App. 1999)).

Accordingly, LeBlanc

must “set forth specific fraudulent or deceptive acts rather
than general allegations.”

AGFA Photo USA Corp. v. Parham, No.

1:06-cv-216, 2007 WL 1655891, at *11 (E.D. Tenn. June 5, 2007).
LeBlanc asserts that Defendants violated the TCPA by:
(1) “attempting to collect double [mortgage] payments” from
LeBlanc (Compl., ECF No. 1-2, ¶ 38); (2) failing to cooperate
in the loan-modification review (id. ¶ 39); (3) delaying notice
regarding the status of a permanent loan modification and moving
forward with the foreclosure of the Brownsville Property (id.
¶ 40); and (4) reneging on their promise to grant LeBlanc a
permanent loan modification (id. ¶ 41).

Bank of America argues

that LeBlanc cannot state a claim for which relief can be
granted because the TCPA does not apply to foreclosure disputes
(ECF No. 5-1 at 7-8); because the TCPA does not apply to credit
terms of a transaction (id. at 8-9); because LeBlanc has not met
the Rule 9(b) pleading standard (id. at 9-11); and because
LeBlanc has not sufficiently pled that he lost money or property
as a result of Bank of America’s alleged violation of the TCPA
(id. at 11).
LeBlanc’s TCPA claims are addressed in turn.
13

1. Double Drafts
LeBlanc asserts that Bank of America’s drafting of mortgage
payments twice in the same month constitutes an unfair and
deceptive act and practice prohibited by the TCPA.
No. 1-2, ¶¶ 19, 38.)

(Compl., ECF

Bank of America argues that LeBlanc has

not pled his TCPA claim with the required particularity because
LeBlanc has not identified or cited one of the “enumerated
specific unfair or deceptive acts or practices that constitute
violations of the TCPA.”

(ECF No. 5-1 at 10.)

Furthermore,

Bank of America states that the “catch-all provision” of the
TCPA, Tenn. Code Ann. § 47-18-104(b)(27), which could arguably
cover LeBlanc’s claim, vests enforcement solely in the Attorney
General of Tennessee.

(Id.); see Tenn. Code Ann. § 47-18-

104(b)(27) (“Engaging in any other act or practice which is
deceptive to the consumer or to any other person; provided,
however, that enforcement of this subdivision (b)(27) is vested
exclusively in the office of the attorney general and reporter
and the director of the division[.]”).

LeBlanc asserts that

this claim is sufficiently plead with particularity under the
TCPA, as the TCPA is “a remedial statute and is to be liberally
construed to effectuate its purposes.”

(ECF No. 9 at 13.)

Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has not stated a claim
under the TCPA for the alleged double drafts.

In his Complaint,

LeBlanc alleges that “[i]n some months two drafts were made” by
14

Bank of America for monthly mortgage payments of $769.22.
No. 1-2 ¶¶ 18-19.)

(ECF

LeBlanc states that this constitutes “unfair

and deceptive acts and practices as prohibited by the [TCPA].”
(Id. at 38.)

These statements, however, do not satisfy the

higher pleading standard of Rule 9(b).

LeBlanc does not allege

during which months the alleged double payments occurred and
LeBlanc does not allege how the double payments were unfair or
deceptive under the TCPA.

Additionally, assuming that LeBlanc

intends to rely on the “catch-all provision” of the TCPA, there
is no longer a private right of action for violations of that
section.

See Tenn. Code Ann. § 47-18-104(b)(27); see also

Malone v. U.S. Bank Nat’l Ass’n, No. 12-3019-STA, 2013 WL
392487, at *5 (W.D. Tenn. Jan. 30, 2013).

Accordingly,

LeBlanc’s TCPA claim based on the alleged double drafts is
DISMISSED WITH PREJUDICE.
2. Failure to Cooperate
LeBlanc asserts that Defendants failed to cooperate in the
loan modification process and the following related acts by
Defendants constitute unfair and deceptive acts and practices
prohibited by the TCPA:
[B]eing unresponsive to countless inquiries about the
status of Mr. LeBlanc’s permanent loan modification;
requiring Mr. LeBlanc to send the same documents over
and over again; misleading Mr. LeBlanc about the
recalculation
of
his
loan
payments;
arbitrarily
denying his permanent loan modification; and failing
to articulate any understandable reason for denying
the permanent loan modification . . . .

15

(Compl., ECF No. 1-2, ¶ 39.)

Bank of America argues that

LeBlanc cannot state a claim pursuant to the TCPA for Bank of
America’s alleged failure to cooperate in the loan modification
process because the TCPA does not apply to credit terms of a
transaction.

(ECF No. 5-1 at 7.)

In support, Bank of America

quotes Tennessee Code Annotated Section 47-18-111(a)(3), which
states that “[t]he provisions of [the TCPA] shall not apply to
. . . [c]redit terms of a transaction which may be otherwise
subject to the provisions of [the TCPA].”

(Id. at 8-9.)

Bank

of America states that neither the terms of the Note nor the
Deed of Trust require Bank of America to offer loan
modifications or reduced payments.

(Id. at 9.)

Accordingly,

Bank of America argues that its alleged failure to cooperate is
“related to terms of . . . the extension of credit because such
actions or statements would be modifications of the Note and
[Deed of Trust].”

(Id. (alteration in original) (internal

quotation marks omitted) (citing Knowles v. Chase Home Fin.,
LLC, No. 1:11-cv-01051-JDB-egb, 2012 U.S. Dist. LEXIS 166748, at
*24-25 (W.D. Tenn. Aug. 2, 2012)).)

LeBlanc asserts that this

claim arises out of the performance of the servicing of the loan
and not out of the extension of credit.

(ECF No. 9 at 11

(quoting Humphreys, 2012 WL 1022988, at *10) (citing Beard v.
Worldwide Mortg. Corp., 354 F. Supp. 2d 789, 815 (W.D. Tenn.
2005)).)

16

Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has not stated a claim
under the TCPA for Defendant’s alleged failure to cooperate in
the loan modification process.

There is no cause of action

under the TCPA related to loan-modification proceedings as they
are considered to arise out of the extension of credit.

See

Silvestro v. Bank of Am., N.A., No. 3-13-0066, 2013 WL 1149301,
at *5 (M.D. Tenn. Mar. 19, 2013); Knowles, 2012 U.S. Dist. LEXIS
166748, at *24-25.

Accordingly, LeBlanc’s TCPA claim based on

Bank of America’s alleged failure to cooperate in the loan
modification process is DISMISSED WITH PREJUDICE.
3. Delayed Notification
LeBlanc asserts that Defendants’ act of “delaying
notification about [sic] status of [sic] permanent loan
modification while forging ahead with foreclosure procedures
constitutes an unfair and deceptive practice” prohibited by the
TCPA.

(Compl., ECF No. 1-2, ¶ 40.)

Bank of America argues that

LeBlanc cannot state a claim pursuant to the TCPA for Bank of
America’s alleged failure to provide notification during the
foreclosure process because the TCPA does not apply to
foreclosure disputes.

(ECF No. 5-1 at 7-8.)

In support, Bank

of America cites cases that have held that the TCPA does not
apply to claims arising out of the foreclosure process.

(Id. at

8 (citing Pursell v. First American National Bank, 937 S.W.2d
838, 842 (Tenn. 1996), and Launius v. Wells Fargo Bank, N.A.,
17

No. 3:09-CV-501, 2010 WL 3429666, at *15-18 (E.D. Tenn. Aug. 27,
2010)).)

LeBlanc argues that cases holding that the TCPA does

not apply to claims arising out of the foreclosure process
misinterpret Pursell and should not be followed by this Court.
(ECF No. 9 at 8.)
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has not stated a claim
under the TCPA for Bank of America’s delayed notification of the
status of the loan modification during foreclosure proceedings.
In Pursell, the Tennessee Supreme Court held that the TCPA did
not extend to a “dispute [that] arose over repossession of the
collateral securing a loan.”

937 S.W.2d at 842.

Since Pursell

district courts have “consistently held that a lender’s actions
related to foreclosure and debt-collection, even when it is also
pursuing loan modification, are not covered under the TCPA.”
Knowles, 2012 U.S. Dist. LEXIS 166748, at *23; see Malone, 2013
WL 392487, at *5; Gilliard v. Recontrust Co., N.A., No. 1:11-cv331, 2012 WL 4442525, at *7-8 (E.D. Tenn. Sept. 25, 2012);
Vaughter v. BAC Home Loans Servicing, LP, No. 3:11-cv-00776,
2012 WL 162398, at *5-6 (M.D. Tenn. Jan. 19, 2012); Paczko v.
Suntrust Mortgs., Inc., M2011-02528-COA-R3-CV, 2012 WL 4450896,
at *2 (Tenn. Ct. App. Sept. 25, 2012).

Accordingly, LeBlanc’s

TCPA claim based on Bank of America’s delayed notification of
the status of the loan modification during foreclosure
proceedings is DISMISSED WITH PREJUDICE.
18

4. Failure to Honor Promise
LeBlanc asserts that “Defendants’ acts in promising
[LeBlanc] a permanent loan modification and then reneging on
that promise constitute unfair or deceptive acts and practices”
prohibited by the TCPA.

(Compl., ECF No. 1-2, ¶ 41.)

Bank of

America argues that because the TCPA does not apply to credit
terms of a transaction, “any alleged actions or statements
concerning a loan modification are ‘related to terms of . . .
the extension of credit.’”
original).)

(ECF No. 5-1 at 9 (alteration in

LeBlanc argues that this claim arises under the

performance of the servicing of the loan and not from the
extension of credit.

(ECF No. 9 at 11 (citing Beard, 354 F.

Supp. 2d at 815).)
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has not stated a claim
under the TCPA for Bank of America’s alleged failure to honor
its promise to LeBlanc.

There is no cause of action under the

TCPA related to loan-modification proceedings as they are
considered to arise out of the extension of credit.

See

Silvestro, 2013 WL 1149301, at *5; Knowles, 2012 U.S. Dist.
LEXIS 166748, at *24-25.

Accordingly, LeBlanc’s TCPA claim

based on Bank of America’s alleged failure to honor its promise
is DISMISSED WITH PREJUDICE.

19

In summary, all of LeBlanc’s TCPA claims are dismissed with
prejudice.

Therefore, Bank of America’s Motion to Dismiss is

GRANTED as to LeBlanc’s TCPA claims.
C. Breach-of-Contract Claims
In order to establish a breach-of-contract claim under
Tennessee law, a plaintiff must prove “(1) the existence of a
contract, (2) breach of the contract, and (3) damages [that]
flow from the breach.”

Hinton v. Wachovia Bank of Del. Nat’l

Ass’n, 189 F. App’x 394, 398 (6th Cir. 2006) (alteration in
original) (quoting Life Care Ctrs. of Am., Inc. v. Charles Town
Assocs. Ltd., 79 F.3d 496, 514 (6th Cir. 1996)) (internal
quotation marks omitted).

An enforceable contract “result[s]

from a meeting of the minds of the parties in mutual assent to
[its] terms.”

Staubach Retail Servs.-Se., LLC v. H.G. Hill

Realty Co., 160 S.W.3d 521, 524 (Tenn. 2005) (internal quotation
marks omitted).
LeBlanc asserts that Bank of America breached “a
contractual agreement between them . . . that he would receive a
permanent loan modification if he successfully completed a trial
forbearance agreement” and then failing to give LeBlanc a
permanent loan modification.

(Compl., ECF No. 1-2, ¶ 45.)

LeBlanc further asserts that by engaging in this behavior, Bank
of America “breached the common law covenant of good faith and
fair dealing in conjunction with their contractual obligations
in servicing the mortgage.”

(Id. ¶ 46.)
20

LeBlanc’s claims are addressed in turn.
1. Permanent Loan Modification
Bank of America asserts that LeBlanc cannot state a breachof-contract claim based on Bank of America’s failure to give
LeBlanc a permanent loan modification because the Trial Period
Plan (the “TPP”) relating to the modification process is not
properly before the court.

(ECF No. 5-1 at 12.)

Bank of

America further argues that LeBlanc cannot state a claim for a
breach of contract because the TPP is not an enforceable
contract and because any oral agreement to offer LeBlanc a
permanent loan modification is barred by the statute of frauds.
(Id. at 12-15.)
The Court first addresses whether the TPP is properly
before this Court.

The Court then addresses whether the TPP is

an enforceable contract.

The Court finally addresses whether

the alleged oral agreement to offer Plaintiff a permanent loan
modification is barred by the statute of frauds.
a. The TPP Is Properly Before this Court.
Bank of America argues that the TPP is not properly before
this Court because LeBlanc did not attach the TPP to his
Complaint.

(ECF No. 5-1 at 12.)

In support, Bank of America

cites Tennessee Rule of Civil Procedure 10.03, which states that
“[w]henever a claim . . . is founded upon a written instrument
. . . a copy of such instrument or the pertinent parts thereof
21

shall be attached to the pleading as an exhibit.”

(Id. (citing

Tenn. R. Civ. P. 10.03).)
Pursuant to Rule 12(d), however, “[a]ll parties must be
given a reasonable opportunity to present all the material that
is pertinent to the motion.”

Fed. R. Civ. P. 12(d).

Accordingly, in analyzing a Rule 12(b)(6) motion to dismiss, “a
court may consider exhibits attached [to the complaint]”
including “exhibits attached to defendant’s motion to dismiss so
long as they are referred to in the complaint and are central to
the claims therein.”

Rondigo, 641 F.3d at 680-81 (alteration in

original) (quoting Bassett, 528 F.3d at 430) (internal quotation
marks omitted).
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that the TPP is properly before it.
Bank of America has attached the TPP signed by LeBlanc to its
Motion to Dismiss (see ECF No. 5-4); it can be easily inferred
from the Complaint that LeBlanc’s references to the temporary
loan modification are references to the TPP (see, e.g., ECF No.
1-2 ¶¶ 18, 45); and the TPP is central to LeBlanc’s breach-ofcontract claim, see Rondigo, 641 F.3d at 680-81.

Accordingly,

the Court may consider the TPP in analyzing Bank of America’s
Motion to Dismiss.6

6

Additionally, considering this document will not convert Bank of America’s
Motion to Dismiss into a motion for summary judgment. See Peoples v. Bank of
America, No. 11-2863-STA, 2012 WL 601777, at *4 (W.D. Tenn. Feb. 22, 2012).

22

b. The TPP Is Not an Enforceable Contract.
Bank of America states that the TPP is not a contract
because “the TPP makes clear that [LeBlanc] is not guaranteed a
permanent modification.”

(ECF No. 5-1 at 12.)

The TPP is

instead an agreement that contains certain conditions that, if
met, “trigger the formation of a contract to permanently modify
the loan.”

(Id.)

Bank of America asserts that LeBlanc cannot

state a claim on the basis of the TPP because LeBlanc has failed
to plead that he met all of the conditions in the TPP.

(Id.)

LeBlanc argues that the TPP agreement is itself a contract
because the TPP agreement constituted an offer he accepted the
offer by signing the TPP agreement.

(ECF No. 9 at 15 (citing

Darcy v. CitiFinancial, Inc., No. 1:10-cv-848, 2011 WL 3758805,
at *5-6 (W.D. Mich. Aug. 25, 2011)).)
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has not stated a breach-ofcontract claim under the TPP.

First, the agreement to modify

LeBlanc’s mortgage under the TPP appears to the Court to be
based on LeBlanc fulfilling certain conditions.

As a result,

failure to fulfill the conditions of the TPP would result in
Bank of America having no liability pursuant to the TPP.

See

Real Estate Mgmt., Inc. v. Giles, 293 S.W.2d 596, 599 (Tenn. Ct.
App. 1956) (holding that liability did not attach to a contract
“because the conditions prerequisite to liability were never
fulfilled”).

The TPP states that LeBlanc’s loan will “not be
23

modified unless and until (i) [LeBlanc] meet[s] all the
conditions required for modification, (ii) [LeBlanc] receive[s]
a fully executed copy of a Modification Agreement, and (iii) the
Modification Effective Date has passed.”
PageID 96.)

(See ECF No. 5-4 at

LeBlanc’s entitlement to the modification of his

loan is therefore based on LeBlanc meeting these specific
conditions.

Second, LeBlanc’s Complaint does not allege any

facts allowing the Court to infer that he met the necessary
conditions for the permanent modification of his loan.

LeBlanc

alleges only that he was told that he would receive a
modification of his loan.

(See ECF No. 1-2 ¶ 22.)

Because

LeBlanc has failed to plead that he satisfied the conditions
necessary for the liability to attach to the TPP, see Giles, 293
S.W.2d at 599, LeBlanc has not satisfied the pleading standard
for a material element of his breach-of-contract claim based on
the TPP.

See Wittstock, 330 F.3d at 902.

Accordingly,

LeBlanc’s breach-of-contract claim, insofar as it is based on
the TPP, is DISMISSED WITH PREJUDICE.
c. The Oral Agreement Is Not Enforceable.
Bank of America argues that if LeBlanc intends to base his
breach-of-contract claim on the alleged oral promise to modify
LeBlanc’s loan made by a Bank of America representative over the
phone, the claim is barred by the Tennessee statute of frauds.
(ECF No. 5-1 at 13.)

LeBlanc argues that the oral agreement is

not barred by the statute of frauds because he partially
24

performed on the oral agreement and because the doctrine of
equitable estoppel should be applied to this case.

(ECF No. 9

at 16-19.)
In Tennessee, contracts do not need to be in writing to be
enforceable.

See Burton v. Warren Farmers Coop., 129 S.W.3d

513, 521 (Tenn. Ct. App. 2002).

Under the Tennessee statute of

frauds, however, certain “contracts are not considered valid and
enforceable unless they are memorialized in a writing.”

Rhynes,

2013 U.S. Dist. LEXIS 42713, at *24-25 (citing Shah v. Racetrac
Petroleum Co., 338 F.3d 557, 573 (6th Cir. 2003)).
The Court first addresses whether the alleged oral contract
falls within the statute of frauds.

The Court then addresses

whether LeBlanc has demonstrated that the oral agreement is not
barred under the statute of frauds based on his partial
performance.

The Court finally addresses whether the doctrine

of equitable estoppel should apply in this case.
i. Tennessee Statute of Frauds
Bank of America asserts that a claim based on the alleged
oral statement to modify LeBlanc’s loan is barred under the
Tennessee statute of frauds as the contract is of the type that
must be in writing pursuant to both Tennessee Code Annotated
Section 29-2-101(a)(4) and Section 29-2-101(b)(1).
at 13-14.)

(ECF No. 5-1

Under Tennessee Code Annotated Section 29-2-101(a),

“[n]o action shall be brought . . . [u]pon any contract for the
25

sale of lands, tenements, or hereditaments, or the making of any
lease thereof for a longer term than one (1) year . . . unless
the promise or agreement . . . shall be in writing, and signed
by the party to be charged therewith.”
101(a)(4)-(5).

Tenn. Code Ann. §§ 29-2-

Tennessee courts have interpreted mortgages and

deeds of trust as “an interest in land and[,] as such[,] within
the meaning of the Statute of Frauds.”

See Lambert v. Home Fed.

Sav. & Loan Ass’n, 481 S.W.2d 770, 772-73 (Tenn. 1972).

Under

Tennessee Code Annotated Section 29-2-101(b),
“[n]o action shall be brought against a lender or
creditor . . . upon any promise or commitment to
alter, amend, renew, extend or otherwise modify or
supplement any . . . agreement or commitment to lend
money or extend credit, unless the promise or
agreement . . . shall be in writing and signed by the
lender or creditor, or some other person lawfully
authorized by such lender or creditor.”
Tenn. Code Ann. § 29-2-101(b)(1).
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that the alleged oral agreement falls
within the statute of frauds because it is a “commitment to
. . . modify . . . [an] agreement or commitment to lend money or
extend credit.”

Tenn. Code Ann. § 29-2-101(b)(1); see Williams

v. SunTrust Mortg., Inc., No. 3:12-CV-477, 2013 WL 1209623, at
*3 (E.D. Tenn. Mar. 25, 2013).

Accordingly, LeBlanc may only

bring a breach-of-contract claim based on the oral agreement if

26

he can demonstrate that one of the exceptions to the statute of
frauds applies.
ii. Part Performance
LeBlanc argues that the statue of frauds does not bar his
breach-of-contract claim based on the oral agreement to modify
his loan because he has partly performed on the oral agreement.
(ECF No. 9 at 16.)

LeBlanc asserts that the Bank of America

representative told him that if he stopped making mortgage
payments, Bank of America “would offer him a permanent
modification.”

(Id. at 19.)

Accordingly, LeBlanc asserts that

his action in stopping his mortgage payments constitutes partial
performance on the oral agreement.

(Id.)

Partial performance on a contract can constitute an
exception to the writing requirement for a contract that falls
within the statute of frauds.

See Jarrett v. Epperly, 896 F.2d

1013, 1018 (6th Cir. 1990); see also Lomax v. Jackson-Madison
Cnty. Gen. Hosp. Dist., No. 02A01-9706-CH-00116, 1997 WL
33760893, at *2 (Tenn. Ct. App. Oct. 31, 1997).

The doctrine of

partial performance
is purely an equitable doctrine and is a judicial
interpretation of the acts of the parties to prevent
frauds. . . . The plaintiff must be able to show such
acts and conduct of the defendant as the court would
hold to amount to a representation that he proposed to
stand by his agreement and not avail himself of the
statute to escape its performance; and also that the
plaintiff, in reliance on this representation, has
proceeded, either in performance or pursuance of his
27

contract, so far to alter his position as to incur an
unjust and unconscious injury and loss, in case the
defendant is permitted after all to rely upon the
statutory defense.
Upperline Equip. Co. v. J & M, Inc., 724 F. Supp. 2d 883, 890
(E.D. Tenn. 2009) (emphasis added) (quoting Buice v. Scruggs
Equip. Co., 250 S.W.2d 44, 48 (Tenn. 1952)) (internal quotation
marks omitted); accord Schnider v. Carlisle Corp., 65 S.W.3d
619, 622 (Tenn. Ct. App. 2001).

This doctrine, however, is not

applied to situations in which “it could easily result in the
exception of partial performance swallowing the rule of the
Statute of Frauds, and allowing the proliferation of those very
evils that the Statute was created to guard against.”

Shedd v.

Gaylord Entm’t Co., 118 S.W.3d 695, 698 (Tenn. Ct. App. 2003).
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has not sufficiently pled
that he partially performed on the oral agreement to modify his
loan.

An assertion of part performance as an exception to the

statute of frauds is essentially a claim that the defendant
engaged in fraudulent conduct by making a “representation that
[it] proposed to stand by [its] agreement” and then did not
stand by its agreement despite its representation.

Accordingly,

an assertion of partial performance “sounds in fraud,” Ind.
State Dist. Council of Laborers v. Omnicare, Inc., 583 F.3d 935,
948 (6th Cir. 2009), and the heightened pleading standard

28

articulated in Rule 9(b) applies to the allegedly fraudulent
conduct of Bank of America.

Because LeBlanc does not plead with

particularity when the alleged promise was made or who
specifically made the alleged promise, LeBlanc has not met the
heightened pleading standard of Rule 9(b).

See Republic Bank,

683 F.3d at 247.
iii. Equitable Estoppel
LeBlanc argues that the statue of frauds does not bar his
breach-of-contract claim based on the oral agreement to modify
his loan because he has stated all the elements of equitable
estoppel in his Complaint.

(ECF No. 9 at 19.)

Equitable estoppel can constitute an exception to the
writing requirement for a contract that falls within the statute
of frauds.

See Jarrett, 896 F.2d at 1018.

Under the doctrine

of equitable estoppel, the party asserting the doctrine must
show the following elements as to the non-asserting party:
(1) [c]onduct which amounts to a false representation
or concealment of material facts, or, at least, which
is calculated to convey the impression that the facts
are otherwise than, and inconsistent with, those which
the party subsequently attempts to assert; (2)
[i]ntention, or at least expectation that such conduct
shall be acted upon by the other party; (3)
[k]nowledge, actual or constructive of the real facts.
Osborne v. Mountain Life Ins. Co., 130 S.W.3d 769, 774 (Tenn.
2004) (internal quotation marks omitted); accord Carbon
Processing, 823 F. Supp. 2d at 825.

29

The asserting party must

also demonstrate their own “(1) [l]ack of knowledge and of the
means of knowledge of the truth as to the facts in question; (2)
[r]eliance upon the conduct of the party estopped; and (3)
[a]ction based thereon of such a character as to change his
position prejudicially.”

Osborne, 130 S.W.3d at 774 (internal

quotation marks omitted); accord Carbon Processing, 823 F. Supp.
2d at 825.

This doctrine applies only in “exceptional cases

where to enforce the statute of frauds would make it an
instrument of hardship and oppression, verging on actual fraud.”
Jarrett, 896 F.2d at 1018-19 (emphasis added) (quoting Baliles
v. Cities Serv. Co., 578 S.W.2d 621, 624 (Tenn. 1979)) (internal
quotation marks omitted); accord Davidson v. Wilson, No. M200901933-COA-R3-CV, 2010 WL 2482332, at *8 (Tenn. Ct. App. June 18,
2010).
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has not sufficiently pled
the elements necessary to raise equitable estoppel as a defense
to the statute of frauds.

Pursuant to Tennessee law, equitable

estoppel applies only in “exceptional cases” where the conduct
complained of “verg[es] on actual fraud.”
at 624.

Baliles, 578 S.W.2d

As a result, an assertion of equitable estoppel as an

exception to the statute of frauds “sound[s] in fraud,”
Omnicare, 583 F.3d at 948, and the heightened pleading standard
articulated in Rule 9(b) applies to the allegedly fraudulent
30

statement, see Cataldo v. U.S. Steel Corp., 676 F.3d 542, 553
(6th Cir. 2012); Edwards v. Alcoa, Inc., No. 3:12-03-DCR, 2013
WL 589213, at *5 (E.D. Ky. Feb. 14, 2013); see also Barnes &
Noble, Inc. v. LSI Corp., 849 F. Supp. 2d 925, 940-41 (N.D. Cal.
2012).

Because LeBlanc does not plead with particularity when

the alleged promise was made or who specifically made the
alleged promise, LeBlanc has not met the heightened pleading
standard of Rule 9(b).

See Republic Bank, 683 F.3d at 247.

In summary, LeBlanc’s breach-of-contract claim based on the
oral agreement to permanently modify LeBlanc’s loan is DISMISSED
WITH PREJUDICE.
2. Good Faith and Fair Dealing
LeBlanc asserts that “Defendants breached the common law
covenant of good faith and fair dealing in conjunction with
their contractual obligations in servicing the mortgage.”
(Compl., ECF No. 1-2, ¶ 46.)

Bank of America argues that,

because “a breach of the implied covenant of good faith and fair
dealing is not an independent basis for relief” under Tennessee
law, LeBlanc does not state a breach-of-contract claim on this
ground.

(ECF No. 5-1 at 15 (citing Weese v. Wyndham Vacation

Resorts, No. 3:07-CV-433, 2009 WL 1884058, at *5 (E.D. Tenn.
June 30, 2009)).)
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has not stated a breach-of31

contract claim for a breach of the covenant of good faith and
fair dealing.

It is well-settled under Tennessee law that a

“breach of the implied covenant of good faith and fair dealing
is not an independent basis for relief, but rather ‘may be an
element or circumstance of . . . breaches of contracts.’”
Upperline Equip., 724 F. Supp. 2d at 892 (quoting Solomon v.
First Am. Nat’l Bank of Nashville, 774 S.W.2d 935, 945 (Tenn.
Ct. App. 1989)); see also BKB Properties, LLC v. SunTrust Bank,
No. 3:08-cv-00529, 2009 WL 529860, at *8 (M.D. Tenn. Mar. 2,
2009) aff’d, 453 F. App’x 582 (6th Cir. 2011).

Because LeBlanc

has failed to sufficiently plead a breach-of-contract claim
against Bank of America, see supra pp. 20-31, LeBlanc cannot
state a basis for a breach-of-contract claim based on a breach
of the covenant of good faith and fair dealing.

Accordingly,

LeBlanc’s breach-of-contract claim based on the covenant of good
faith and fair dealing is DISMISSED WITH PREJUDICE.
In summary, all of LeBlanc’s breach-of-contract claims are
dismissed with prejudice.

Therefore, Bank of America’s Motion

to Dismiss is GRANTED as to LeBlanc’s breach-of-contract claims.
D. Promissory-Estoppel Claim
In Tennessee, “[p]romissory estoppel is based on a promise
which the promisor should reasonably expect to induce action or
forbearance on the part of the promisee or a third person and
which does induce such action or forbearance is binding if
32

injustice can be avoided only by enforcement of the promise.”
Barnes & Robinson Co. v. OneSource Facility Servs., Inc., 195
S.W.3d 637, 645 (Tenn. Ct. App. 2006) (quoting Calabro v.
Calabro, 15 S.W.3d 873, 878 (Tenn. Ct. App. 1999)) (internal
quotation marks omitted).

In order to state a claim for

promissory estoppel, a plaintiff must show “(1) that a promise
was made; (2) that the promise was unambiguous and not
unenforceably vague; and (3) that they reasonably relied upon
the promise to their detriment.”

Chavez v. Broadway Elec. Serv.

Corp., 245 S.W.3d 398, 404 (Tenn. Ct. App. 2007).

The doctrine

of promissory estoppel is limited to “exceptional cases where a
defendant’s conduct is akin to fraud.”

Grona v. CitiMortgage,

Inc., No.3-12-0039, 2012 WL 1108117, at *4 (M.D. Tenn. Apr. 2,
2012) (emphasis added); see Barnes & Robinson, 195 S.W.3d at
645.
LeBlanc asserts that Bank of America’s representative made
a promise to LeBlanc that his loan payments were “being
recalculated and that he should stop making payments until he
was instructed on the amount of the new payments under the
permanent loan modification” (Compl., ECF No. 1-2, ¶ 48); that
he relied on this “promise to his detriment” (id. ¶ 50); and
that, had the representative not made this promise, he would
have continued to make payments and would not have defaulted on
his mortgage (id. ¶ 51).

33

Bank of America argues that LeBlanc cannot state a claim on
which relief can be granted because promissory estoppel is “only
available where there is no valid contract between the parties”;
Bank of America’s actions are not “akin to fraud”; and LeBlanc’s
claim is barred by the statute of frauds because an oral promise
to modify a loan requires a signed writing to be enforceable.
(ECF No. 5-1 at 16-17.)
LeBlanc argues that he has asserted a plausible claim for
promissory estoppel based on Vaughter, 2012 WL 162398.
No. 9 at 21-22.)

(ECF

In Vaughter, the court held that the

plaintiffs had alleged a plausible promissory-estoppel claim
where the plaintiffs asserted that the defendant promised the
plaintiffs “that if they stopped making payments and submitted
the required paperwork, then [they] would be provided with some
type of loan modification offer”; the plaintiffs alleged that
“they relied on [the] promise in that they stopped making
payments and put forth time and money into the modification
promise”; and that the plaintiffs were harmed because their
credit was negatively impacted.

2012 WL 162398, at *8-9

(internal quotation marks omitted).
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc cannot raise a promissoryestoppel claim.

Generally, promissory-estoppel claims are only

available where there is no valid contract between the parties.
See Sparton Tech., Inc. V. Util-Link, LLC, 248 F. App’x 684,
34

689-90 (6th Cir. 2007); Grona, 2012 WL 1108117, at *4 (stating
that promissory-estoppel claims “are only available where there
is no valid contract between the parties); see also Tennessee
Supreme Court’s Order on Rule 23 Certified Questions of Law at
PageID 6008-09, Carbon Processing & Reclamation, LLC v. Valero
Mktg. & Supply Co., No. 09-2127-STA (W.D. Tenn. Mar. 12, 2012),
ECF No. 203.

An exception to this general rule exists only

where the “claim of promissory estoppel was advanced to expand
the terms of, not change the terms of, an existing contract.”
Sparton Tech., 248 F. App’x at 690 (citing Bill Brown Constr.
Co. v. Glens Falls Ins. Co., 818 S.W.2d 1, 9-11 (Tenn. 1991)).
In this case, there is a valid contract between the parties, the
Deed of Trust, that LeBlanc is seeking to change the terms of
through a permanent loan modification.

Accordingly, LeBlanc’s

claim of promissory estoppel seeks to change the terms of an
existing contract and is therefore barred.

See Sparton Tech.,

248 F. App’x at 690.
Alternatively, LeBlanc has not stated a promissory-estoppel
claim because LeBlanc has not alleged any facts indicating that
Bank of America’s actions are “akin to fraud.”
1108117, at *4.

Grona, 2012 WL

In his Complaint, LeBlanc does not assert when

the alleged promise was made or who specifically made the
alleged promise, as required by Rule 9(b) in pleading fraud.
See Republic Bank, 683 F.3d at 247; see also Doe v. Univ.of the
South, 687 F. Supp. 2d 744, 763 (E.D. Tenn. 2009) (holding that
35

the plaintiffs had failed to raise a viable promissory estoppel
claim where they did not plead “facts to support a finding that
the [defendant’s] conduct is the equivalent to fraud”).
Accordingly, LeBlanc’s promissory-estoppel claim is DISMISSED
WITH PREJUDICE.
Bank of America’s Motion to Dismiss is GRANTED as to
LeBlanc’s promissory-estoppel claim.7
E. Negligent-Misrepresentation Claim
In order to state a claim for negligent misrepresentation
in Tennessee, a “plaintiff must establish ‘that [1] the
defendant supplied information to the plaintiff; [2] the
information was false; [3] the defendant did not exercise
reasonable care in obtaining or communicating the information[;]
and [4] the plaintiffs justifiably relied on the information.’”
Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 311
(Tenn. 2008) (quoting Williams v. Berube & Assocs., 26 S.W.3d
640, 645 (Tenn. Ct. App. 2000)).

Under Tennessee law, claims

for negligent misrepresentation fall within the higher pleading
requirements of Rule 9(b).

See Marshall v. ITT Tech. Inst., No.

3:11-CV-552, 2012 WL 1205581, at *3 (E.D. Tenn. Apr. 11, 2012);
Humphreys, 2012 WL 1022988, at *14; Western Express, Inc. v.
Brentwood Servs., Inc., No. M2008-02227-COA-R3-CV, 2009 WL
3448747, at *10 (Tenn. Ct. App. Oct. 26, 2009).

7

The Court need not reach the issue of whether the statute of frauds bars
LeBlanc’s promissory-estoppel claim, an issue that has not yet been resolved
by the Tennessee courts. See Carbon Processing, 823 F. Supp. 2d at 818-24.

36

LeBlanc asserts that: (1) “the [Bank of America]
representative, acting in the course of her employment, provided
faulty information” intended to “guide [] LeBlanc in his attempt
to obtain a permanent loan modification” (Compl., ECF No. 1-2,
¶ 53); (2) the “representative failed to exercise reasonable
care in providing and/or communicating the information” to
LeBlanc (id. ¶ 54); and (3) LeBlanc “justifiably relied upon the
information provided by the . . . representative” (id. ¶ 55).
Bank of America argues that LeBlanc has failed to state a
claim for negligent misrepresentation because LeBlanc fails to
satisfy the higher pleading standard of Rule 9(b).
at 18.)

(ECF No. 5-1

In support, Bank of America states that LeBlanc does

not identify the faulty information to which he is referring and
does not state with particularity the “time, place, and content
of the alleged misrepresentation.”

(Id.)

LeBlanc argues that

the facts alleged and the “reasonable inferences drawn [from
those facts], are sufficient to state misrepresentations about
existing facts and to make [out] a claim of negligent
misrepresentation that is plausible on its face.”

(ECF No. 9 at

23.)
Viewing LeBlanc’s allegations in the light most favorable
to him, the Court finds that LeBlanc has not stated a claim for
negligent misrepresentation.

In his Complaint, LeBlanc asserts

that a representative of Bank of America gave LeBlanc false
information during a conversation between LeBlanc, the FCDC
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Housing Counselor, and the representative.
53.)

(ECF No. 9 ¶¶ 22,

While LeBlanc sufficiently alleges the “content of the

alleged misrepresentation,” LeBlanc does not plead with
particularity when the alleged promise was made or who
specifically made the alleged promise, as is necessary under
Rule 9(b).

See Republic Bank, 683 F.3d at 247.

As a result,

LeBlanc has not alleged with particularity a material element of
negligent misrepresentation.

See Wittstock, 330 F.3d at 902.

Accordingly, LeBlanc’s negligent-misrepresentation claim is
DISMISSED WITH PREJUDICE.
Bank of America’s Motion to Dismiss is GRANTED as to
LeBlanc’s negligent-misrepresentation claim.
V. CONCLUSION
For the foregoing reasons, Bank of America’s Motion to
Dismiss is DENIED IN PART as to LeBlanc’s TILA claim; and
GRANTED IN PART as to LeBlanc’s TCPA, breach-of-contract,
promissory-estoppel, and negligent-misrepresentation claims.
Accordingly, all of LeBlanc’s claims other than his TILA claim
are DISMISSED WITH PREJUDICE.
SO ORDERED this 18th day of June, 2013.

s/ Jon P. McCalla
JON P. McCALLA
CHIEF U.S. DISTRICT JUDGE

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