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Stine v. Bank of America N.A.

United States District Court, D. Maine

September 21, 2016

KEVIN R. STINE, Plaintiff,
v.
BANK OF AMERICA, N.A., et al. Defendants.

          ORDER ON DEFENDANTS' MOTIONS TO DISMISS

          George Z. Singal United States 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.

         I. LEGAL STANDARD

         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. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Under Rule 12(b)(6), the Court “may consider only facts and documents that are part of or incorporated into the complaint.” United Auto., Aerospace, Agric. Implement Workers of Am. Int'l Union v. Fortuno, 633 F.3d 37, 39 (1st Cir. 2011) (internal quotation omitted).

         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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering a motion to dismiss, the Court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Plaintiffs must include enough facts supporting a claim for relief that “nudge[] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. At this point in the litigation, “the determination of whether an issue is trialworthy simply is not the same as the determination of whether a plaintiff states a claim upon which relief can be granted.” Bodman v. Maine, Dep't of Health & Human Servs., 720 F.Supp.2d 115, 121 (D. Me. 2010). However, “[i]f the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (internal quotation omitted); see also Iqbal, 556 U.S. at 678 (stating that a court need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”). In short, a plaintiff must plead facts indicating “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (emphasis added).

         II. FACTUAL BACKGROUND

         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.[1]

         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 Bank of Am., N.A. v. Greenleaf, 96 A.3d 700 (Me. 2014). (Compl. ¶ 13.) During the time that BANA serviced the mortgage, it denied Plaintiff's attempts to modify the mortgage or to sell the property by short sale. (Compl. ¶¶ 22-24.) On June II, 2015, BANA executed an assignment transferring the mortgage to Bayview. (Compl. ¶ 10.) Plaintiff subsequently received a “debt validation letter” from Bayview.[2] (Compl. ¶ 15.) Plaintiff filed the present litigation in the Superior Court of the State of Maine in York County; the suit was removed to this Court based on the Plaintiff's claims involving federal law. (See Notice of Removal (ECF No. 1).)

         III. DISCUSSION

         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.

         A. Count II: Breach of Contract

         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. Me. Energy Recovery Co. v. United Steel Structures, Inc., 724 A.2d 1248, 1250 (Me. 1999).

         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.[3] Second, Plaintiff's allegations that BANA failed to provide “accurate, complete or true information” are also too conclusory to support a plausible claim because Plaintiff does not identify what information BANA failed to provide or how any failure constituted a material breach of the mortgage contract-Plaintiff concedes that BANA is not responsible for any alleged violations of RESPA. (See Pl.'s Resp. in Opp'n to BANA Mot. to Dismiss (ECF No. 26) at 4.) Finally, Plaintiff's allegations that BANA failed to meets its obligations under the HAMP/MHA program is unavailing. These programs do not create a private right of ...


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