JOHN ANTOON II, District Judge.
In this case, Plaintiffs, Abdiel Echeverria ("Echeverria") and Isabel Santamaria ("Santamaria"), have filed pro se a four-count Third Amended Verified Complaint ("Third Amended Complaint") (Doc. 49) against Defendants, BAC Home Loans Servicing, LP ("BAC") and Bank of America, N.A. stemming from BAC's conduct while servicing Plaintiffs' home loan. Defendants have filed a motion to dismiss and a motion for summary judgment as to all claims.
Plaintiffs purchased their home on February 29, 2008, with loan assistance from the Federal Housing Administration. (Third Am. Compl. ¶ 1). On the same day, Plaintiffs executed a promissory note in favor of the original lender, Taylor, Bean & Whitaker Mortgage Corporation ("TBW"). (Id. ¶ 13). Later, in September 2009, a third party not affiliated with TBW or Defendants informed Plaintiffs that their loan had been sold to BAC. (Id. ¶ 14).
Plaintiffs' Third Amended Complaint alleges four counts against Defendants — violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq. (Count One); Fraudulent Misrepresentation (Count Two); violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. (Count Three); and "Infliction of Emotional Distress" (Count Four).
"A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "`[D]etailed factual allegations'" are not required, but "[a] pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
Plaintiffs claim that Defendants are liable to them under 18 U.S.C. § 1964(c) for alleged "racketeering activity" including mail fraud, wire fraud, theft, and forgery. (Third Am. Compl. ¶ 56). Section 1964(c) provides for recovery only for "[a]ny person injured in his business or property." "[T]he Supreme Court has declared that Congress' limitation of recovery to business or property injury `retains restrictive significance. It would for example exclude personal injuries suffered.'" Genty v. Resolution Trust Corp., 937 F.2d 899, 918 (3d Cir.1991) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979)). Accordingly, "[a] plaintiff asserting a claim under § 1964(c) of RICO must allege economic injury arising from the defendant's actions." Ironworkers Local Union 68 v. AstraZeneca Pharms., LP, 634 F.3d 1352, 1361 (11th Cir.2011).
Despite this Court's prior ruling to the contrary, Plaintiffs continue to assert that their personal injuries can satisfy the injury element of a RICO claim.
While Plaintiffs bring a single count for "Infliction of Emotional Distress," it is clear that they intend to state a claim for both intentional infliction of emotional distress and negligent infliction of emotional distress. Plaintiffs allege that they suffered emotional distress and related physical injuries as a result of Defendants' "intentional, reckless, and/or negligent" conduct. (Third Am. Compl. ¶ 76). The allegedly wrongful conduct consists entirely of actions related to Plaintiffs' loan modification application and the servicing of Plaintiffs' loan, such as "threatening with foreclosure over the phone and by mail" and "repeatedly losing or misplacing Plaintiff[s'] personal and financial documentation." (Id. ¶ 73).
To establish a cause of action for intentional infliction of emotional distress, a plaintiff must show that the intentional conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985); see also Scheller v. Am. Med. Int'l, Inc., 502 So.2d 1268, 1270-71 (Fla. 4th DCA 1987). Whether the alleged conduct meets this exacting standard is a question for the court to decide as a matter of law. Vance v. S. Bell Tel. & Tel. Co., 983 F.2d 1573, 1575 n. 7 (11th Cir. 1993). The facts pleaded in the Third Amended Complaint do not rise to the requisite degree of outrageousness, and thus Count Four fails insofar as it attempts to set forth a claim of intentional infliction of emotional distress.
In Florida, claims for negligent infliction of emotional distress are "governed by the judicially-created `impact rule' designed to assure the validity of claims for emotional distress." Novella v. Wal-Mart Stores, Inc., 459 F.Supp.2d 1231, 1235 (M.D.Fla.2006) (citing Int'l Ocean Tel. Co. v. Saunders, 32 Fla. 434, 14 So. 148 (1893)). "The impact rule ... requires that `before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.'" S. Baptist Hosp. of Fla. v. Welker, 908 So.2d 317, 320 (Fla.2005) (quoting R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995)). Although Florida courts "have carved out limited exceptions to the impact rule in extraordinary circumstances, [these exceptions] have been `narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and the lack of countervailing policy concerns, have surmounted the policy rational[e] undergirding application of the impact rule.'" Novella, 459 F.Supp.2d at 1235-36 (quoting Rowell v. Holt. 850 So.2d 474, 478 (Fla.2003)). Plaintiffs have not alleged any "impact," nor do they allege any facts on which an exception to the impact rule would apply. Hence, Count Four also fails to state a claim for negligent infliction of emotional distress.
Accordingly, Plaintiffs have failed to state a claim for intentional infliction of emotional distress and for negligent infliction of emotional distress.
With respect to Counts One (RESPA) and Two (Fraudulent Misrepresentation), the Court concludes that the Third Amended Complaint contains "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). As explained below, however, these counts do not survive Defendants' Motion for Summary Judgment.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court construes the facts and all reasonable factual inferences in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, when faced with a "properly supported motion for summary judgment, [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir.1997).
Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative." Sawyer v. Southwest Airlines Co., 243 F.Supp.2d 1257, 1262 (D.Kan.2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
"[A]t the summary judgment stage, the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "Essentially, the inquiry is `whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.'" Sawyer, 243 F.Supp.2d at 1262 (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505).
"RESPA provides for certain disclosure requirements to be followed by the entities or persons responsible for servicing a federally related mortgage loan, including disclosures of any assignment, sale, or transfer of the loan." McCarley v. KPMG Int'l, 293 Fed.Appx. 719, 722 (11th Cir.2008). Plaintiffs allege that Defendants violated 12 U.S.C. § 2605(e) by failing to respond adequately to Plaintiffs' "qualified written requests" and that Defendants violated § 2605(c) by failing to send Plaintiffs a notice within the statutorily required time period that the loan had been transferred to BAC.
To succeed on a claim under § 2605(e), Plaintiffs must show: (1) that Defendants are servicers; (2) that Defendants
12 U.S.C. § 2605(e)(1)(B). In other words, under subsection (ii) a QWR must (1) give a statement of the reasons that the account was in error or (2) seek other information regarding the servicing of the loan. "The term `servicing' means receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts ... and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan." Id. § 2605(i)(3).
Defendants move for summary judgment on the grounds that they responded to any QWRs in compliance with RESPA and that Plaintiffs have not presented any evidence of damages, which is "a necessary element of any claim under § 2605." Frazile, 382 Fed.Appx. at 836. To support their RESPA claim, Plaintiffs point to three specific letters they sent to BAC. (Third Am. Compl. ¶¶ 15,16).
The first letter on which Plaintiffs rely is a QWR. The letter is dated March 24, 2010 and includes a fax cover sheet showing that Plaintiffs' attorney
The second letter on which Plaintiffs rely is not a QWR. Plaintiffs attached to their Complaint a July 10, 2010 letter to BAC that requests only the "Promissory Note [Plaintiffs] signed on February 29, 2008." (Ex. A-2 to Third Am. Compl.). As Defendants point out, this request does not relate to the "servicing" of Plaintiffs' loan, and therefore it is not a QWR. See, e.g., Jones v. PNC Bank, N.A., Civil Action No. 10-cv-01077-LHK, 2010 WL 3325615,
Additionally, Plaintiffs refer to an August 16, 2010 letter, (Ex. BE to Compl., Doc. 1), which they characterize as a "Demand Letter." (Third Am. Compl. ¶ 15). It is not clear whether Plaintiffs intend to allege in their Third Amended Complaint that the Demand Letter is a QWR that could form the basis of a RESPA violation.
Even if the Demand Letter were a QWR, Plaintiffs allege only that Defendants "`refused' to comply" with the letter's demands. (Third Am. Compl. ¶ 15). They do not allege that Defendants failed to respond to the letter in compliance with RESPA. In fact, Plaintiffs attached to their Second Amended Verified Complaint a letter that itself indicates that Defendants had responded to the Demand Letter on October 29, 2010. (Doc. 31-7 at 25). Plaintiffs do not contest this evidence in their Response. Accordingly, even assuming that the August 16, 2010 letter constitutes a QWR, there is not a genuine dispute as to whether Defendants responded to that letter in compliance with RESPA.
Moreover, Plaintiffs have not presented evidence that they suffered actual damages as a result of any of Defendants' alleged RESPA violations, nor have they presented evidence that they are entitled to statutory damages. Under RESPA, a plaintiff may obtain "actual damages to the borrower as a result of the [defendant's failure to comply with RESPA]" and "in case of a pattern or practice of noncompliance... an amount not to exceed $1,000." 12 U.S.C. § 2605(f)(1). Plaintiffs allege that "[their] damages were proximately caused by Defendant BAC's noncompliance with ... RESPA" and that "Defendant BAC has engaged in a pattern and practice of `noncompliance' with the requirements of ... RESPA." (Third Am. Compl. ¶ 45). Defendants argue that Plaintiffs "make no effort to allege entitlement to anything other than statutory damages" and that Plaintiffs have not presented any evidence to show they are entitled to such damages. (Defs.' Mot. for Summ. J. at 7).
In response, Plaintiffs state that "[u]nder RESPA, Plaintiffs would only be entitled to statutory damages of $1,000.00 per violation." (Pls.' Resp. at 5). This statement appears to acknowledge that Plaintiffs have limited their RESPA claim to one for statutory damages. In any event, Plaintiffs' allegation that "Plaintiffs' damages were proximately caused by Defendant BAC's noncompliance" is not evidence of actual damages. Furthermore, there is no genuine dispute of material fact as to whether Defendants have engaged in a "pattern or practice" of RESPA violations. Even if Defendants failed to send Plaintiffs a proper transfer notice under § 2605(c), a single RESPA violation is not evidence of a "pattern or practice" of violations. See, e.g., Davis v. Greenpoint Mortg. Funding, Inc., Civil Action No.
In sum, there is no genuine dispute of material fact concerning whether Defendants failed to respond to any QWR in compliance with RESPA, nor have Plaintiffs presented evidence that they are entitled to actual damages or statutory damages. Accordingly, Plaintiffs' claim under 12 U.S.C. § 2605(e) fails as a matter of law.
Pursuant to § 2605(c), "[e]ach transferee servicer to whom the servicing of any federally related mortgage loan is assigned, sold, or transferred shall notify the borrower of any such assignment, sale, or transfer ... not more than 15 days after the effective date of transfer" unless certain exceptions apply.
Plaintiffs allege that Defendants did not properly notify them that their loan had been transferred to BAC from the original lender, TBW. (Third Am. Compl. ¶ 14). Although the loan was transferred to BAC in September 2009, Plaintiffs claim that they did not become aware of the transfer "until their bi-weekly mortgage program... advised them on the telephone that they incorrectly submitted [their] September 2009 payment to [TBW]." (Id.). Defendants have submitted a transfer notice from BAC addressed to Plaintiffs and dated August 23, 2009, (Ex. C to Ettori Decl.), but Plaintiffs dispute whether Defendants actually sent it on the date printed on the letter,
Nevertheless, Plaintiffs' failure to present evidence of an actual injury or a pattern or practice of RESPA violations renders the issue moot. As explained above, even if BAC did not send timely notice of the transfer, a single RESPA violation is not evidence of a "pattern or practice of noncompliance." Davis, 2011 WL 7070222, at *5. Therefore, Plaintiffs claim under 12 U.S.C. § 2605(c) fails as a matter of law.
"In the state of Florida, relief for a fraudulent misrepresentation may be granted only when the following elements are present: (1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and, (4) consequent injury by the party acting in reliance on the representation." Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985).
Plaintiffs offer a litany of allegedly false statements relating to their loan modification application and the servicing of their account. The core of these allegations is that BAC told Plaintiffs they would qualify for a loan modification if they defaulted on their loan and that BAC told them that they had been approved for a loan modification after they defaulted. (Third Am. Compl. ¶¶ 17, 49).
Plaintiffs have not, however, presented evidence that they have suffered any injury as a result of acting in reliance on any of these alleged misrepresentations. Plaintiffs allege that they have suffered "monetary, emotional, physical, and other damages as a result" of relying on the alleged misrepresentations. (Id. ¶ 53). Beyond these general allegations, though, the closest Plaintiffs come to presenting evidence of injury is in stating that they
In accordance with the foregoing, it is
