Marino v. Bank of America Home Loans et al

Filing 26

OPINION AND ORDER granting in part and denying in part 16 Motion to Dismiss ; granting in part and denying in part 18 Motion to Amend 15 Amended Complaint. Plaintiff shall file a Second Amended Complaint within 30 days. Signed by Judge William K. Sessions III on 2/27/2013. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
VERA GRETCHYN MARINO,
Plaintiff,
v.
BANK OF AMERICA HOME
LOANS, BANK OF AMERICA
CORPORATION, individually
and as successor to the
interests, credits and
liabilities of COUNTRY
WIDE HOME LOANS, INC.,
Defendants.
VERA GRETCHYN MARINO,
Plaintiff,
v.
COUNTRY WIDE HOME LOANS,
INC. and BANK OF AMERICA
HOME LOANS and BANK OF
AMERICA CORPORATION,
interests, credits and
liabilities of COUNTRY
WIDE HOME LOANS, INC.,
Defendants.

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Case No. 2:11-cv-241
(lead case)

Case No. 2:11-cv-243

OPINION AND ORDER
(Docs. 16, 18)
Plaintiff Vera Gretchyn Marino, proceeding pro se,
brings this consolidated action against Defendants
Countrywide Home Loans, Inc. (“Countrywide”), Bank of
America, N.A. (“BANA”) (named in the Amended Complaint as

Bank of America Home Loans), and Bank of America Corporation
(“BAC”), alleging that she was defrauded into refinancing
her home.

Defendants now move to dismiss, and Marino moves

for leave to amend her Amended Complaint.

For the reasons

set forth below, the motion to dismiss is GRANTED in part
and DENIED in part, and Marino’s motion to amend is also
GRANTED in part and DENIED in part.
Factual Background
For purposes of the pending motion to dismiss, the
facts alleged in the Amended Complaint will be accepted as
true.

Marino, an attorney, owns a home located at 46

Quarter Mile Road in Winhall, Vermont.

According to the

Amended Complaint, she has lived in the house for
approximately forty-four years.

The original mortgage on

the house was paid off in or about 1980.
Beginning in September 2005, Marino was solicited by
two Countrywide agents, Mark Memmelo and Steve Da Silva, to
take out a mortgage on her house.

Memmelo allegedly told

Marino that “the money in her home was doing nothing for
her,” and that she could “put that equity money to use for
her security in her senior years.”

(Doc. 15 at 5-6.)

Marino was sixty-seven years old at the time.

2

Memmelo also

allegedly informed Marino that any commission due to him or
Countrywide would not be charged to her, assured her that he
was trustworthy, and told her that he “had her financial
interests at heart.”

Id.

On September 13, 2005, Memmelo told Marino that the
interest rate on the new loan would be, at worst, 5.8%.

At

Memmelo’s request, the home was appraised and the reported
value was $610,000.

Memmelo then informed Marino that he

could write a loan in the amount of approximately $350,000
to $375,000.
Marino subsequently asked Memmelo’s opinion about using
the proceeds of the refinancing to purchase a condominium in
New York City.

Memmelo allegedly responded: “That’s a great

idea, that’s a hot market, that’s good, but let’s not tell
anyone about that.”

Id. at 7.

On October 4, 2005, Marino received a document from
Countrywide’s Edwin Marini, with whom she had not had any
prior contact, informing her she was applying for a loan
with an interest rate that exceeded the “Declared Rate” by
3%, and for which the lender would charge more than four
points.

The notice from Marini did not specify either the

actual interest rate or the number of points on the loan.

3

That same day, Marino received a second document from
Trinidad Blanchet, stating that the loan amount would be
$360,000, with a discount fee of $900 and an interest rate
of 9.75%, discounted .25%, with a monthly payment of $2,925
for principal and interest.
When Marino read the terms of the loan she called
Memmelo, who allegedly assured her “not to worry, that this
is a formality only, didn’t I tell you that the worst case
would be around 5 or 6%, and don’t forget, there are no
points[] charged to you.”

Id.

Memmelo also allegedly

assured Marino that the documents she had received were a
“screw up,” but urged her to sign the document sent by Edwin
Marini.

Id. at 8.

Marino signed the document as requested.

On October 5, 2005, Marino signed a contract to
purchase a condominium in New York City.

The down payment

on the condominium was $95,000, with a purchase price of
$950,000.

Under the terms of the deal, Marino forfeited her

down payment if the transaction did not close by November
30, 2005.
Marino claims that the interest rate on her Vermont
refinancing “came to be 10% on October 5, 2005, the date of
closing this loan with [Countrywide].”

4

Facing the potential

of forfeiting the down payment on the New York City property
if she did not receive funds from Countrywide, Marino closed
on the Vermont refinancing.

The Amended Complaint alleges

that because of the stress of these events, Marino suffered
a “coronary occlusion” eleven days after the transaction.
The condition required emergency surgery, and has since
resulted in “coronary sequellae . . . , uncontrolled
hypertension and acute emotional distress.”

Id. at 10.

Marino reports that although Memmelo assured her that
New York City was a “hot market,” and that a condominium
there would rise in value, the condominium was sold in June
2011 at a considerable loss.

In 2012, she discovered that

she was unable to continue the payments on her Vermont home.
Marino further alleges that from 2004 through 2008,
officers and directors at Countrywide conspired to
embark on a secret corporate strategy and plan, on
a national scale, to maximize the number of
mortgages . . . that it sold to the public at
large, by directing and/or encouraging, through
its agents, servants and/or employees, supervisors
and team leaders, which included Mr. Memmelo and
Mr. DaSilva, to sell as many of its loans as
possible by ‘steering’ and ‘encouraging’ people
into loan contracts, with whatever words,
opinions, projections, representations or
statements it took, even if such words, opinions,
projections, representations or statements, were
wild, patently speculative, [or] untrue . . . .

5

Id. at 11.

The “ultimate purpose” of this conspiracy,

Marino claims, was “to bundle and sell these loans as
securities . . . to the world market.”

Id. at 11.

Marino

alleges that her refinancing was a result of this broad
conspiracy to defraud homeowners.
Countrywide was purchased by Bank of America in July
2008.

Marino claims that as a result of Countrywide’s

alleged deceptions and misrepresentations, Bank of America
negotiated a settlement with the Attorney General for the
State of California for payment in the amount of $8.68
billion, to be used “for the benefit of the victims of
Id. at 16.

Countrywide’s scheme . . . .”

Former

Countrywide officers also reportedly paid millions of
dollars in penalties for “disgorgement of ill-gotten gains.”
Id.
The Amended Complaint brings four causes of action.
The first alleges fraud and deceptive practices.

Marino

also asserts within this cause of action that her claim is
timely because she did not discover “defendants’ illegal
interest rate” until May 17-18, 2011.

Id. at 18.

Elsewhere

in the Amended Complaint, she claims the interest rate on
her loan was higher than allowed under Vermont law.

6

Id. at

8.
The second cause of action seeks rescission pursuant to
the federal Truth in Lending Act (“TILA”).

Again addressing

timeliness, Marino submits that she was unable to assert her
rights under TILA because of her medical condition
immediately after the closing on her refinancing, and that
federal law allows for equitable tolling.

In her response

to Defendants’ motion to dismiss, Marino requests leave to
withdraw this claim.

(Doc. 19 at 15.)

Marino’s third cause of action alleges breach of
contract.

Specifically, Marino claims that “[t]he foregoing

transactions . . . constitute an express contract . . .
which the defendants breached as set forth in the
allegations contained herein, causing plaintiff to sustain
damages and entitlement to equitable relief.”
20.)

(Doc. 15 at

The fourth cause of action claims that Countrywide and

its agents were not properly licensed and otherwise failed
to comply with Title Eight of the Vermont Banking and
Insurance law.

The fourth cause of action also alleges that

Countrywide failed to allow Marino an opportunity to execute
a notice of cancellation as allegedly required by Title Nine
of the Vermont Banking and Insurance Law, and violated

7

Vermont law by offering an interest-only loan.
For relief, Marino is seeking $1,000,000 “and/or
equitable relief, including an injunction against defendants
prohibiting proceeding in foreclosure of plaintiff’s home”
and rescission of her loan agreement.

Id. at 14.

She

contends that damages should be paid out of the settlement
funds received by the State of California.
Discussion
I.

Motion to Dismiss
A.

Legal Standard

Pending before the Court is Defendants’ motion to
dismiss, filed pursuant to Fed. R. Civ. P. 12(b)(6).

When

ruling on a motion to dismiss pursuant to Rule 12(b)(6), the
Court must accept all factual allegations in the Complaint
as true and draw all reasonable inferences in the
plaintiff’s favor.

Famous Horse Inc. v. 5th Avenue Photo

Inc., 624 F.3d 106, 108 (2d Cir. 2010).

However, the Court

is not required to credit “mere conclusory statements” or
“[t]hreadbare recitals of the elements of a cause of
action.”

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

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)).

“To survive a motion to dismiss, a complaint must

8

contain sufficient factual matter . . . to ‘state a claim to
relief that is plausible on its face.’”

Id. (quoting

Twombly, 550 U.S. at 570).
A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id. (citing Twombly, 550 U.S. at 556).

More specifically, the plaintiff must allege sufficient
facts to show “more than a sheer possibility that a
defendant has acted unlawfully.”

Id.

If the plaintiff has

not “nudged [her] claims across the line from conceivable to
plausible, [the] complaint must be dismissed.”

Twombly, 550

U.S. at 570; see Iqbal, 556 U.S. at 680.
In ruling on a motion to dismiss pursuant to Rule
12(b)(6), a district court must ordinarily construe a pro se
complaint liberally, see Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011), and interpret the claims as raising the
strongest arguments that they suggest.

Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).

In

this case, however, the plaintiff is an attorney who has
practiced for many years in personal injury and general
practice law.

(Doc. 19 at 5.)

9

Consequently, she does not

receive “the special consideration which the courts
customarily grant to the pro se parties.”

Harbulak v.

County of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981); see
also Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d
Cir. 2001).
B.

Licensing Claim

Defendants first address Marino’s claim that
Countrywide was not a licensed lender in Vermont on October
6, 2005.

Defendants submit that, contrary to Marino’s

allegation, Countrywide was a licensed lender in Vermont
from April 19, 2000 through February 6, 2009, operating
under Licence Number 4745.

Defendants further contend that

the Court may consider this fact as a matter of public
record.

Licensing information is available through a

national registry, which may be accessed through the website
for the Vermont Department of Financial Regulation.

(Doc.

17 at 7) (citing http://www.nmlsconsumeraccess.org and
http://www.dfr.vermont.gov/banking/home).
When considering a motion to dismiss, a court must
confine its considerations to “facts stated on the face of
the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters

10

of which judicial notice may be taken.”

Thomas v. Goord,

215 F. App’x 51, 52 (2d Cir. 2007) (internal quotation marks
and citations omitted); see also Allen v. WestPointPepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).

The

doctrine of judicial notice is governed by Federal Rule of
Evidence 201, which states that “a court may judicially
notice a fact that is not subject to reasonable dispute
because it (1) is generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.”

Fed. R. Evid. 201.

It has been held that records made available through a
state-run website may be judicially noticed under Rule 201.
See Desclafani v. Pave–Mark Corp., 2008 WL 3914881, at *6
(S.D.N.Y. 2008) (holding that the court could take judicial
notice of records from the Florida Department of State,
Division of Corporations Website pursuant to Federal Rule of
Evidence 201); see also Hall v. Virginia, 385 F.3d 421, 424
(4th Cir. 2004) (noting it was proper during Rule 12(b)(6)
review to consider “publicly available [statistics] on the
official redistricting website of the Virginia Division of
Legislative Services”).

As Countrywide’s licensing was a

11

matter of public record through a state agency, the Court
may consider Defendants’ evidence.

Because that evidence

shows that Countrywide was, in fact, licensed during the
relevant time period, Defendants’ motion to dismiss on that
claim is GRANTED.
C.

Claims Under Titles Eight and Nine

In addition to her licensing claim, Marino alleges in
her fourth cause of action that Countrywide failed to comply
with Title Eight of the Vermont Banking and Insurance law
with respect to “origination, . . . records or continuing
education for mortgage loan originators.”

(Doc. 15 at 21.)

She also claims that Countrywide “failed to comply with
Title 9 of the Vermont Commerce and Trade Law in failing to
provide plaintiff with an opportunity to execute a notice of
cancellation . . . ,” and by “engaging in practices which
are prohibited therein, including but not limited to
prohibition against deception and interest only loans.”
(Doc. 15 at 21.)

As a result of these alleged infractions,

Marino asserts that her loan is unenforceable.
Defendants argue that these claims are not alleged with
sufficient specificity.

They contend that the Title Eight

claim lacks any reference to “specific ‘rules and

12

regulations,’” while the Title Nine claims do not “identify
the practices engaged in by Countrywide which are prohibited
by Title Nine.”

(Doc. 17 at 9.)

With respect to the first

argument, the Second Circuit has held that “the failure in a
complaint to cite a statute, or to cite the correct one, in
no way affects the merits of a claim.”

McEachin v.

McGuinnis, 357 F.3d 197, 199 n.2 (2d Cir. 2004) (citations
omitted). “Factual allegations alone are what matters.”

Id.

Marino’s Title Eight claims include allegations of a failure
to maintain records and failure to adhere to educational
requirements.

While the Court expresses no opinion at this

time about the merits of such claims, the claims do not fail
for lack of citation to a specific rule or regulation.
With respect to the Title Nine claims, the Amended
Complaint alleges deceptive practices – by Memmelo
specifically and Countrywide generally – and an interestonly loan.

As with the Title Eight claims, a failure to

cite to specific sections of Title Nine does not, at this
early stage in the case, render such claims insufficient.
The motion to dismiss for lack of specificity is therefore
DENIED.
Defendants also argue that the only two statutes

13

specifically referenced in the Amended Complaint – 8 V.S.A.
§ 10402 and 9 V.S.A. § 104 – do not provide private rights
of action.

Marino has not offered any response to this

argument.

The Vermont Supreme Court has explained that

“[e]ven if we assume, without deciding, that the defendants’
conduct violated [the statute or regulation in question],
the violation of a statute or regulation does not in an of
itself give rise to a private right of action for damages.”
Cronin v. State, 148 Vt. 252, 254-55 531 A.2d 929, 931
(1987), overruled on other grounds by Libercent v. Aldrich,
149 Vt. 76, 539 A.2d 981 (1987).

The Vermont Supreme Court

has also instructed that a private cause of action is
available only if, among other things, there is an
indication that the legislature intended to allow such a
remedy.

See Livington v. Town of Hartford, 186 Vt. 547,

552, 979 A.2d 459, 464 (2009) (citing Carr v. Peerless Ins.
Co., 168 Vt. 465, 473, 724 A.2d 454, 459 (1998)).
Section 10402 of Title Eight states in its entirety:
“An entity subject to this chapter shall be subject to and
comply with the provisions of chapter 4 of Title 9.”
V.S.A. § 10402.

8

Nothing in this language suggests a

legislative intent to create a private right of action.

14

Section 104 of Title Nine empowers the Vermont Tax
Commissioner to impose penalties where a lender fails to
make specified disclosures.

The Commissioner has discretion

to impose an administrative penalty, and/or to order the
refund of charges to a borrower who did not received the
required disclosures.

9 V.S.A. § 104(c).

not mention a private cause of action.

The statute does

Moreover, as the

Vermont Supreme Court has cautioned, “a private right of
action . . . would potentially frustrate the legislative
scheme for enforcement of [these] rules and regulations.”
Cronin, 148 Vt. at 255, 531 A.3d at 931.

The motion to

dismiss Marino’s claims under 8 V.S.A. § 10102 and 9 V.S.A.
§ 104 is therefore GRANTED.
In her opposition memorandum, Marino cites three
additional sections of Title Eight as included (though not
initially specified) in her claim.

The first of these is

the Vermont consumer fraud statute, 9 V.S.A. § 2453.

The

second is 8 V.S.A. § 2209a, pertaining to continuing
education of mortgage brokers.

The third is 8 V.S.A. §

2231, which allegedly prohibits interest-only loans.
Defendants oppose any claim brought under these latter two
statutes, arguing that they do not apply in this case.

15

With respect to § 2209a, Defendants contend that the
continuing education requirement is a prerequisite for the
banking Commissioner to license mortgage brokers.
Individual litigants, they argue, cannot challenge a
broker’s compliance with the requirement.

Indeed, the

statute merely describes the requirements, and nothing in
therein suggests a legislative intent for anyone other than
the Commissioner to enforce those requirements.

See 8

V.S.A. § 2209a.
As to § 2231, Marino cites language requiring that “all
loan contracts made under the provisions of this chapter
shall require repayment in substantially equal consecutive
monthly installments of principal and interest combined.”
V.S.A. § 2231(a).

8

However, the statute explicitly excludes

loans originated pursuant to 8 V.S.A. § 2216, which in turn
governs loans that are secured by a lien against real
estate.

See 8 V.S.A. § 2231(a).

Accordingly, the motion to

dismiss is GRANTED with respect to any claims being brought
pursuant to 8 V.S.A. §§ 2209a and 2231.
D.

TILA Claim

As noted above, Marino has requested permission to
withdraw her second cause of action under TILA, explaining

16

that the claim appears to be “time barred, [and] is unlikely
to be equitably tolled.”

(Doc. 19 at 15.)

This claim is

therefore DISMISSED without prejudice.
E.

Fraudulent Misrepresentation and Consumer Fraud

Defendants next argue that Marino’s fraudulent
misrepresentation and consumer fraud claim are inadequately
pled.

Specifically, Defendants submit that Marino’s

reliance upon Memmelo’s statements – first about the 9.75%
interest rate being a “screw up,” and second about the
wisdom of investing in New York City real estate – was not
reasonable.

Marino counters that Defendants’ argument is

premature, as questions of reasonability are for a jury to
decide.
Under Vermont law, a claim for fraudulent
misrepresentation requires reliance that is justified.

See

Lewis v. Cohen, 157 Vt. 564, 570, 603 A.2d 352, 354 (1991).
It has also been held that where “it is clear from the full
text of a representation or from facts about the
relationship of the parties that reliance should only follow
an independent inquiry,” a plaintiff will be expected to
have made that inquiry.

Winton v. Johnson & Dix Fuel Corp.,

147 Vt. 236, 241, 515 A.2d 371, 374 (1986)).

17

With respect to the interest rate on the loan,
Defendants contend that Marino should not have relied solely
upon Memmelo’s representations, but should have contacted
Countrywide directly to inquire as to the actual terms.
They also argue that Memmelo’s statements about the New York
City real estate market were matters of opinion and
speculation, and thus did not warrant reliance.

See id.

(holding that claim of misrepresentation cannot be based
upon “judgment or speculation about the future”).
When considering reasonable reliance in the context of
a motion to dismiss, a court may “consider the entire
context of the transaction, including factors such as its
complexity and magnitude, the sophistication of the parties,
and the content of any agreements between them.”

Emergent

Capital Inv. Mgmt., LLC v. Stonepath Grp., Inc., 343 F .3d
189, 195 (2d Cir. 2003).

Because the analysis “involve[s]

many factors to consider and balance, no single one of which
is dispositive,” the Second Circuit has noted that
justifiable reliance is “often a question of fact for the
jury rather than a question of law for the court.”
STMicroelectronics, N.V. v. Credit Suisse Securities (USA)
LLC, 648 F.3d 68, 81 (2d Cir. 2011) (citation omitted).

18

In general, the question on a Rule 12(b)(6) motion “is
not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claims.”

Villager Pond, Inc. v. Town of Darien, 56 F.3d

375, 278 (2d Cir. 1995)).

Here, the relationship between

the parties, Marino’s level of sophistication, and the
content of all relevant communications has not been fully
presented to the Court.

Marino claims that she relied upon

Memmelo’s expertise, and the Court finds that her
allegations set forth plausible claims of fraud.

The motion

to dismiss her claim is premature, and is therefore DENIED.
F.

Breach of Contract

Defendants argue that although Marino claims a breach
of contract, she does not specify what contract was
breached.

In her opposition memorandum, Marino contends

that she agreed to be Memmelo’s customer and to purchase a
loan, and that this agreement constituted a contract.
“Plaintiff and defendant acted upon this contract in their
conversations with each other from September 12, 2005 to
October 4, 2005,” during which Memmelo allegedly “breached
their contract as to the interest rate,” and “propelled the
plaintiff . . . to commit to a contract of purchase for the

19

New York City condominium on October 5, 2005.”

(Doc. 19 at

12.)
Defendants characterize Marino’s argument as alleging a
mortgage loan contract that was formed through oral
negotiations with Memmelo.

Because Vermont’s Statute of

Frauds requires any contract for a sale of land to be in
writing, Defendants argue that Marino’s breach claim would
be barred as a matter of law.

See 12 V.S.A. § 181.

Marino’s claim, however, alleges a contract, either express
or implied, for Memmelo’s good faith services as a mortgage
broker or originator.

She is not alleging a breach of the

loan agreement itself, or of any contract for a sale of
land.

Accordingly, her claim is not barred by the Statute

of Frauds.
Defendants also argue that because Marino’s allegation
stems from discussions with Memmelo beginning on September
12, 2005, her filing of the Complaint more than six years
later, on October 5, 2011, is untimely.

See 12 V.S.A. § 511

(establishing general six-year limitations period for civil
actions).

The Amended Complaint alleges conversation

between Memmelo and Marino that began in September 2005, and
continued into early October of that year.

20

Under Vermont

law, a cause of action for breach of contract accrues not
when the contract is formed, but when the breach occurs.
See Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 24,
399 A.2d 503, 505 (1979).

Assuming a contract for Memmelo’s

services, the parties have not identified or argued the
precise date of the breach.

Accordingly, the Court declines

to dismiss Marino’s breach of contract claim as untimely at
this time, and Defendants’ motion to dismiss that claim is
DENIED.
G.

Claims Against Bank of America

The Amended Complaint does not contain any allegations
against BANA or BAC.

When Defendants noted this in their

motion to dismiss, Marino’s reply memorandum proposed a new
cause of action alleging that “Bank of America, by its
negotiation, participation and acquisition of Countrywide’s
assets and liabilities, together with acquiring $8.68
billion . . . to reimburse the victims of defendant . . .
became responsible to the victims of Countrywide . . . .”
(Doc. 19 at 22.)
Defendants now contend that under Vermont law, the
liabilities of a predecessor corporation will pass to the
successor corporation “only when the change of ownership is

21

occasioned by statutory merger or consolidation.”

(Doc. 22

at 5) (citing Ostrowski v. Hydra-Toll Corp., 144 Vt. 305,
307 (1984)).

They also submit, through representations in

counsel’s memorandum, that Countrywide continues to exist as
a separate corporate entity.
There is currently no record evidence as to the nature
of Bank of America’s alleged acquisition or merger with
Countrywide.

The Court notes that, in other jurisdictions,

Bank of America has been substituted as a party for
Countrywide entities in actions alleging wrongdoing by
Countrywide and its agents.

See, e.g., Riggins v. Bank of

America, N.A., 2013 WL 319285, at *1 (C.D. Cal. Jan. 24,
2013) (noting that “BANA is the successor in interest to
Countrywide [Home Loans, Inc.]”); Lee v. Countrywide Home
Loans, Inc., 2010 WL 1487131, at *1 n.1 (N.D. Ohio, April
13, 2010) (“Bank of America’s presence as a defendant in
this case is due to its status as successor by merger to the
former Countrywide Bank, N.A.; there is no meaningful
difference for present purposes between its own liability
and that of defendant Countrywide Home Mortgage.

Therefore,

the analysis applicable to Countrywide is equally applicable
to Bank of America.”).

The Court also finds that the

22

Amended Complaint’s reference to Bank of America’s
settlement with the State of California creates an inference
that Bank of America assumed at least some of Countrywide’s
liabilities.

Accordingly, based upon the current limited

record, the motion to dismiss BAC and BANA is DENIED.
II. Motion to Amend
Also before the Court is Marino’s motion to amend her
Amended Complaint.

Rule 15(a)(2) of the Federal Rules of

Civil Procedure provides that “the court should freely give
leave [to amend a pleading] when justice so requires.”
Thus, “[w]hen a party requests leave to amend its complaint,
permission generally should be freely granted.”

Anderson

News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir.
2012).

However, “[l]eave to amend may properly be denied if

the amendment would be futile.”

Id. (citing Foman v. Davis,

371 U.S. 178, 182 (1962)).
Here, Marino has submitted a proposed Second Amended
Complaint.1

The Second Amended Complaint would include some

claims – most notably statutory claims under Titles Eight
1

Marino refers to her proposed pleading as a Third
Amended Complaint. In this consolidated action, Marino has
filed more than one Complaint. Since consolidation,
however, there has been a single Amended Complaint. (Doc.
15.) Accordingly, if Marino files another pleading, the
Court will consider it the Second Amended Complaint.
23

and Nine of the Vermont statutes – that the Court has
determined above would be futile.

The motion to amend to

add such claims, and any other claims dismissed above, is
therefore DENIED.
To the extent that Marino seeks to amend any claims
that were not dismissed above, or add new claims against
existing parties, her motion is GRANTED.2

Marino may file a

Second Amended Complaint within 30 days of this Opinion and
Order.
Conclusion
For the reasons set forth above, Defendants’ motion to
dismiss (Doc. 16) is GRANTED in part and DENIED in part, and
Marino’s motion to amend (Doc. 18) is GRANTED in part and
DENIED in part.

Marino may file a Second Amended Complaint

within 30 days of this Opinion and Order.
Dated at Burlington, in the District of Vermont, this
27th day of February, 2013.
2

In opposition to the motion to amend, Defendants
contend that Marino cannot obtain relief under several of
the Vermont statutes cited in her proposed amendment.
Marino responds that she “should be permitted to plead the
rules, ethics and requirements” of Vermont law, and that
such allegations “may bear upon the weight given to
testimony concerning fraud . . . .” (Doc. 24 at 2.) If
Marino is alleging statutory violations merely as
background, and is not seeking relief under those statutes,
she must make that clear in her Second Amended Complaint.
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/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court

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