REPORT & RECOMMENDATION
FRANKLIN L. NOEL, Magistrate Judge.
THIS MATTER came before the undersigned United States Magistrate Judge on November 16, 2012 on Defendants' motion to dismiss (ECF No. 7). The matter was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. See ECF No. 16. For the reasons set forth below, the Court recommends that Defendants' motion be GRANTED and the case be DISMISSED WITH PREJUDICE.
I. BACKGROUND
In November 2002, Plaintiff William Joos executed a promissory note-secured by a mortgage-for $208,000 to buy a home in Cologne, MN. Compl. ¶ 6; Hanson Decl. Exs. A & B at 1, ECF No. 10.1 Joos's finances became strained around January 2010 as a result of a traumatic brain injury suffered by his son. Id. ¶¶ 9-14. He subsequently defaulted on his mortgage loan. Id. ¶ 14. His home went into foreclosure. Id. ¶ 15. And, in December 2011, Joos lost his home at a sheriff's sale. Id. ¶ 46.
Between March and December 2011, Joos made several attempts to secure a loan modification with Defendant Bank of America, N.A. More specifically, Joos alleges that an unnamed, Bank-of-America representative accepted his offer to make larger monthly payments in order to cure his arrearage. Id. ¶¶ 16-18. Joos made $2,000 payments in April 2011 and May 2011, both of which were returned by Bank of America. Id. ¶ 19. Joos also alleges that he sent in a request for a HAMP loan modification (along with multiple copies of various financial documents), met with a Bank-of-America loan counselor, and was repeatedly assured by Bank of America's loan servicers that "everything was fine," that it was just a "long process," and that "if the review takes too long . . . [the loan servicer] would put in a postponement of sale." Id. ¶¶ 20-42.
On December 21, 2011, six days prior to the sheriff's sale, a Bank-of-America loan servicer advised Joos that "the account was still under review and that she would put in for a postponement of sale the next day (December 22, 2011); however, she stated that there was no guarantee that it will be postponed." Id. ¶ 43. Joos offered to pay Bank of America $12,000, which was $6,000 short of his overdue balance, and explained he could not come up with any additional money before the sheriff's sale. Id. ¶ 44. Bank of America refused to postpone the sale. Id. ¶ 46.
II. ANALYSIS
Defendants move to dismiss all of the counts alleged in the complaint pursuant to Rule 12(b)(6).2
A. Standard of review
In reviewing a complaint under a Rule 12(b)(6) motion to dismiss, the Court considers all facts alleged in the complaint as true and construes the pleadings in a light most favorable to plaintiff, the non-moving party. See, e.g., Bhd. of Maint. of Way Employees v. Burlington N. Santa Fe R.R., 270 F.3d 637, 638 (8th Cir.2001). A motion to dismiss should not be granted unless it appears beyond a doubt that plaintiff can prove no set of facts that would entitle plaintiff to relief. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). However, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must state "a claim to relief that is plausible on its face." Id. at 570.
B. The alleged oral modification is not enforceable.
Under the Minnesota Credit Agreement Act, an agreement to "lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation," must be in writing, signed by both the creditor and debtor, and supported by consideration. Minn. Stat. § 513.33, subd. 2 (2012). So to the extent Joos alleges that Defendant Bank of America orally consented to a modification of his loan agreement, such a modification is unenforceable under Minn. Stat. § 513.33.
C. Count 1 fails to state a claim upon which relief can be granted.
In count 1, Joos contends that he "could not obtain a loan modification" due to "Defendants' failures to comply [with] statutory guidelines." Compl. ¶ 50. He therefore seeks an injunction "tolling and extending [his] right to redeem" the property. Id. ¶ 53.
The statutory guidelines to which Plaintiff refers are part of the "Making Home Affordable Plan," promulgated by the Treasury Department to implement part of the Emergency Economic Stabilization Act of 2008. See Bohnhoff v. Wells Fargo Bank, N.A., 853 F.Supp.2d 849, 853 (D. Minn. 2012); 12 U.S.C. § 5219(a)(1) (giving discretionary authority to the Secretary of Treasury to "use loan guarantees and credit enhancements to facilitate loan modifications to prevent avoidable foreclosures"). It is well established that no private right of action exists under HAMP. Id.; Katrviravong v. Mirabella Mortgage, Civ. No. 12-493 (ADM/JJG), 2012 U.S. Dist. LEXIS 78691 at *9-10 (D. Minn. Jun. 6, 2012) ("[C]ourts in [the District of Minnesota] have consistently ruled that HAMP fails to provide a private right of action.") (quoting Ming'ate v. Bank of America, N.A., No. 11-1787, 2011 WL 4590431 at * 3 (D.Minn. Sept. 30, 2011)). Because no private right of action exists under HAMP, count 1 fails to state a claim upon which relief can be granted.3
D. Count 6 fails to state a claim upon which relief can be granted.
Joos alleges in count 6 that he "has suffered emotional distress and his health has diminished."4 The common law tort of intentional infliction of emotional distress requires proof of three elements: (1) that the defendant's conduct was extreme and outrageous; (2) that the conduct was intentional or reckless; and (3) that it caused severe emotional distress. Hubbard v. United Press Int'l Inc., 330 N.W.2d 428, 438-39 (Minn. 1983).
Joos has not alleged any facts upon which a reasonable factfinder could conclude that Defendants' conduct was extreme and outrageous conduct. Joos concedes that he borrowed money and then defaulted on his loan, which was secured by a mortgage. Compl. ¶¶ 14-16. Defendant MERS assigned the mortgage. Defendant Bank of America initiated a foreclosure, and Defendant Fannie Mae simply accepted title to the property following a sheriff's sale. These facts do not, without more, rise to the level of extreme and outrageous conduct. Count 6 fails to state a claim upon which relief can be granted.
E. Count 7 fails to state a claim upon which relief can be granted.
In count 7, Joos alleges that Defendants failed to satisfy the requisites of Minn. Stat. § 580.02 in foreclosing the mortgage because the "[t]he assignment by MERS was not duly registered as the person who signed off on the assignment was not an officer of MERS; in fact, she was a loan officer for [Bank of America]." Compl. ¶ 89.
In order to foreclose a mortgage, Minn. Stat. § 580.02 requires, among other things,
that the mortgage has been recorded, and if it has been assigned, that all assignments thereof have been recorded, provided, that if the mortgage is upon registered land, it shall be sufficient if the mortgage and all assignments thereof have been duly registered . . . .
Minn. Stat. § 580.02 (2012).
The mortgage was recorded and so was the assignment from Defendant MERS to BAC Home Loans Servicing. See Hanson Decl. Ex. B at 1, Ex. D at 1, ECF No. 10. Joos's home was not Torrens property, so the "duly registered" provision of Minn. Stat. § 580.02 does not apply. See Hanson Decl. Ex. C at 2, ECF No. 10. Because the mortgage and its subsequent assignment were recorded and because Joos does not contend that Defendants otherwise failed to comply with Minn. Stat. § 580.02,5 count 7 fails to state a claim upon which relief can be granted.
III. RECOMMENDATION
Based on the foregoing, and all the files, records, and proceedings herein, it is HEREBY RECOMMENDED that:
1. Defendants' motion to dismiss (ECF No. 7) should be GRANTED.
2. Counts 1 through 7 of the complaint should be DISMISSED WITH PREJUDICE.
3. The Court should enter judgment accordingly.
