GEORGE Z. SINGAL, District Judge.
Before the Court is the Motion to Dismiss the Amended Complaint with Incorporated Memorandum of Law filed by Defendant Bank of America, N.A. ("BANA") (ECF No. 23) and the Motion to Dismiss as to Counts III, V, VII, and VIII, with Incorporated Memorandum of Law filed by Defendant Bayview Loan Servicing, LLC ("Bayview") (ECF No. 24). For the reasons explained herein, the Court GRANTS the Motions.
The Federal Rules of Civil Procedure require only that a complaint contain "a short and plain statement of the grounds for the court's jurisdiction . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought." Fed. R. Civ. P. 8(a)(1)-(3). The Court assumes the truth of the complaint's well-pleaded facts and draws all reasonable inferences in the plaintiff's favor.
A viable complaint need not proffer "heightened fact pleading of specifics," but in order to survive a motion to dismiss it must contain "enough facts to state a claim to relief that is plausible on its face."
For the purposes of the Motions to Dismiss, the Court considers the facts as alleged in Plaintiff's First Amended Complaint (ECF No. 17) (the "Complaint or "Compl."), in addition to the mortgage, note, and mortgage assignments.
On May 3, 2006, Plaintiff Kevin R. Stine and his now deceased wife executed a promissory note and a residential mortgage on their home in South Berwick, Maine, in favor of lender American Residential Mortgage. (Compl. ¶ 6; BANA Mot. to Dismiss, Exs. A, B (ECF Nos. 23-1, 23-2).) The mortgage purported to convey the property to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for the lender and the lender's successors and assigns. (Compl. ¶ 7; BANA Mot. to Dismiss, Ex. B.) On December 30, 2011, MERS executed an assignment transferring the mortgage to BANA. (Compl. ¶ 9.) On December 19, 2013, BANA commenced a foreclosure action on the property in state court. (Compl. ¶ 12.) During the pendency of the foreclosure action, BANA became aware of issues with its ability to foreclose the property raised by the Maine Supreme Judicial Court's decision in
The Complaint contains eight separate claims, seven against both Defendants and one solely against Bayview: violation of the Real Estate Settlement Procedures Act (RESPA) as to Defendant Bayview (Count I); breach of contract (Count II); violation of the federal Fair Debt Collection Practices Act (FDCPA) (Count III); intentional misrepresentation (Count IV); fraud by concealment (Count V); violation of the Maine Unfair Trade Practices Act (UTPA) (Count VI); unjust enrichment (Count VII); and slander of title (Count VIII). Defendant BANA seeks dismissal of all counts against it and Defendant Bayview seeks the dismissal of Counts III, V, VII, and VIII. For the reasons set forth below, the Court GRANTS the Defendants' motions, dismisses all counts against Defendant BANA, and dismisses Counts III, V, VII, and VIII against Defendant Bayview.
Plaintiff alleges in Count II that Defendant BANA breached the terms of the mortgage contract, specifically the provision defining "applicable law" as "all controlling applicable federal, state and local" law, by (1) seeking to enforce the terms of the contract against Plaintiff "[d]espite not having the authority to enforce the terms of the mortgage"; (2) failing to provide "accurate, complete or true information" to Plaintiff; and (3) failing to perform certain obligations pursuant to the Home Affordable Modification Program (HAMP) and the Making Home Affordable Program (MHA). (Compl. ¶¶ 34-46.) Under Maine law, the elements of a breach of contract claim are: a) breach of a material contract term; b) causation; and c) damages.
Plaintiff has failed to plead a plausible breach of contract claim against BANA for several reasons. First, Plaintiff's allegation that BANA breached the contract by seeking to enforce its terms is too conclusory to support a plausible claim. Plaintiff does not identify how BANA's actions in this regard caused him damages, especially considering that BANA has purported to transfer all beneficial interest under the mortgage to Bayview and is likely no longer attempting to collect from Plaintiff.
The Court GRANTS BANA's motion as to Count II and dismisses the breach of contract count against BANA.
Plaintiff alleges in Count III that both Defendants violated the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p. (Compl. ¶¶ 76-86.)
Plaintiff has not pleaded facts indicating that either BANA or Bayview are "debt collectors" within the meaning of the Act. He has not pleaded facts to establish that any "collection" action either entity took to enforce its purported, successive beneficial interest in the mortgage was for another entity, rather than for itself, and he has not pleaded facts indicating that debt collection is the principal purpose of either entity. (
The Court considers these counts together because both involve variants of fraud. Plaintiff alleges in Count IV that the Defendants "have made certain false representations of material facts which are the actual amount in principal and interest owed under the Plaintiff's mortgage, the amount of prohibited charges assessed to Plaintiff . . . the errors and omissions contained in Plaintiff's mortgage which have not been fixed or properly accounted for, and the amounts assessed against Plaintiff's mortgage by [Defendants] to which they are not entitled." (Compl. ¶ 88.) Plaintiff alleges in Count V that the Defendants "concealed and continue[] to conceal from Plaintiff material information by failing to provide Plaintiff with signed copies of the closing documents; and owner's policy of title insurance; the appraisal; the land/survey inspection report; answers to requests for documents; answers to complaint letters; truthful and accurate annual 1098 mortgage interest statements; who is the true owner of the mortgage loan; and truthful and accurate statements of accounts." (Compl. ¶ 103.)
Under Maine law, the elements of an intentional misrepresentation claim are: (1) the making of a false representation; (2) of a material fact; (3) with knowledge of its falsity or in reckless disregard of whether it is true or false; (4) for the purpose of inducing another to act or to refrain from acting in reliance on it; and (5) the other person justifiably relies on the representation as true and acts upon it to the damage of the plaintiff.
Both claims are subject to the more rigorous pleading standards for fraud.
Plaintiff has failed to "specify the time, place, and content" of the alleged false representations and has failed to allege facts providing a basis for the inference that BANA or Bayview were reckless in making the false representations, or knew of their falsity, and that they intended to induce Plaintiff to act in reliance on their misrepresentations or omissions.
Plaintiff alleges in Count VI that both Defendants have "engaged in a pattern of unfair and deceptive acts" in the course of handling the mortgage that violate the Maine Unfair Trade Practices Act, 5 M.R.S.A. §§ 205-A-214. (Compl. ¶ 113.) The Act generally prohibits "unfair or deceptive practices in the conduct of any trade or commerce." 5 M.R.S.A. § 207. Maine law exempts any "financial institution authorized to do business in this State" from the Act. 9-B M.R.S.A. § 244. The term "financial institution authorized to do business in this State" is defined to include any "[c]ommercial bank, savings bank, savings and loan association or similar institution that is organized under provisions of federal law or laws of another state and maintains a branch in" Maine. 9-B M.R.S.A. § 131(17-A)(D). "Branch" is defined as "any office of a financial institution . . . where the business of banking is conducted other than the institution's main office."
Plaintiff does not have an obligation to plead that BANA is not an exempt financial institution,
Plaintiff alleges in Count VII that Defendants have charged and collected excessive and improper fees from Plaintiff, including fees "that are not authorized in the original loan documents." (Compl. ¶¶ 122-25.) Under Maine law, the elements of an unjust enrichment claim are: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the benefit; and (3) the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.
Here, Plaintiff has pleaded the existence of a mortgage contract governing the financial relationship between Plaintiff and Defendants. In fact, Plaintiff has specifically based his breach of contract claim on the assertion that the mortgage agreement "represents a contract between the parties to perform certain legally binding obligations." (Compl. ¶ 36.) In light of this contractual relationship between the parties, and the fact that any improper benefit conferred upon the Defendants in the form of improper charges or fees would be related to the underlying contract, Plaintiff's unjust enrichment claim fails. For this reason, the Court GRANTS Defendants' motions as to Count VII and dismisses the unjust enrichment claim against both Defendants.
Plaintiff alleges in Count VIII that both Defendants committed slander of title. The basis for this claim are Defendants' statements asserting that Plaintiff is in default on the mortgage; that the mortgage assignments were valid; and that Defendants have the authority to foreclose Plaintiff's property, collect payments, or assess fees against him. (
Plaintiff's slander of title claim fails for two major reasons. First, to the extent he is relying on any documents filed by BANA in the 2013 foreclosure action, it is well established in Maine that a slander of title claim cannot be based upon filings in a judicial proceeding, provided that the filings are necessary and pertinent to the proceeding.
For the reasons just stated, Defendants' motions (ECF Nos. 23 and 24) are GRANTED. All counts against BANA and Counts III, V, VII, and VIII against Bayview shall be dismissed for failure to state a claim. The case shall proceed as to Counts I, II, IV, and VI as to Bayview only.
SO ORDERED.