Ramos v. Bank of America, N.A. et al, No. 8:2011cv03022 - Document 38 (D. Md. 2012)
Court Description: MEMORANDUM OPINION (c/m to Plaintiff 11/26/12 sat). Signed by Chief Judge Deborah K. Chasanow on 11/26/12. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : CARMEN RAMOS : v. : Civil Action No. DKC 11-3022 : BANK OF AMERICA, N.A., et al. : MEMORANDUM OPINION Presently pending and ready for review in this diversity action is the motion to dismiss filed by Defendants Bank of America, N.A., and BAC Home Loan Servicing, LP. (ECF No. 33). The issues have been fully briefed, and the court now rules, no hearing deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted. I. Background1 This action arises from Plaintiff Carmen Ramos s unsuccessful attempts to obtain a permanent modification of her mortgage loan Department s pursuant Home to Affordable the United Modification States Treasury Program ( HAMP ). HAMP is a national program designed to stem the home foreclosure crisis by providing affordable mortgage loan modifications to 1 As two opinions in this case have come before this one, some familiarity with the facts is assumed. See Ramos v. Bank of America, N.A., et al., No. DKC 11-3022, 2011 WL 5574023 (D.Md. Nov. 15, 2011); Ramos v. Bank of America, N.A., et al., No. DKC 11-3022, 2012 WL 1999867 (D.Md. June 4, 2012). eligible borrowers. In January 2011, Ramos suffered a reduction in her income as a result of a change in her employment. remedy her economic modification mortgage. from Despite situation, Defendants, allegedly Ramos sought HAMP loan Ramos s home modification and who serviced qualifying for a To completing all of the required application materials, Plaintiff never received a permanent modification of her loan. On September 14, 2011, Ramos filed a pro se complaint against Defendants in the Circuit Court for Montgomery County, Maryland, alleging eleven counts based on Defendants purported misconduct in connection with her attempts to procure a loan modification. (ECF No. 2). removed to this court. After service, Defendants timely (ECF No. 1). Ramos unsuccessfully moved to remand the case back to state court. (ECF Nos. 19, 20). On October 31, 2011, Defendants moved to dismiss. 12). (ECF No. By memorandum opinion and order issued on June 4, 2012, that motion was granted. (ECF Nos. 30, 31). In its ruling, the court first explained the distinction between claims that seek to enforce HAMP s guidelines and claims that seek to enforce the terms of a Trial Period Plan ( TPP ) agreement, a standardized contract between lenders and borrowers that establishes a threemonth trial modification of a borrower s existing mortgage and promises a permanent modification if certain conditions are met. (ECF No. 30, at 6-7). Although there is no private cause of 2 action under HAMP, the court observed that a plaintiff seeking to enforce the terms of a TPP, if one exists, may have a cognizable cause of action that is separate and apart from HAMP. (Id. (citing Allen v. CitiMortgage, Inc., No. CCB-10- 2740, 2011 WL 3425665, at *8 (D.Md. Aug. 4, 2011); Stovall v. SunTrust Mortg., Inc., No. RDG-10-2836, 2011 WL 4402680, at *11 (D.Md. Sept. 20, 2011)). Applying this distinction, four of Plaintiff s counts were dismissed because they relied on factual assertions that Defendants had improperly rejected Plaintiff s application for a preliminary loan modification and thus, at bottom, sought to enforce HAMP s guidelines rather than the terms of a TPP. at 7). Although the original complaint contained (Id. factual inconsistencies regarding whether Plaintiff ever entered into a TPP with Defendants, Ramos s remaining counts were nonetheless liberally construed as seeking to enforce the TPP itself or some other right independent of HAMP. (Id.). Due to pleading inadequacies, however, each of these counts was still dismissed under Rule 12(b)(6). Notably, claims for (Id. at 8-18). the memorandum unjust enrichment opinion and dismissed violation of Plaintiff s the Maryland Consumer Protection Act ( MCPA ) without prejudice and provided Ramos with specific, detailed instructions regarding amendment. First, in order for her fraud-based 3 MCPA claim to meet the heightened pleading requirement set forth in Fed.R.Civ.P. 9(b), Ramos was advised that [i]t is not enough to aver the general nature of Defendants compliance, or lack thereof, with HAMP; every factual allegation in support of a potential MCPA claim must be grounded in Defendants actual conduct pursuant to the (ECF No. 30, at 12) (emphasis added).2 TPP. As to unjust enrichment, Plaintiff was instructed that any amendment must set forth non-conclusory facts . . . suggesting that Defendants obtained an unfair benefit by entering into the TPP with Ms. Ramos. (Id. at 15) (emphasis added). The memorandum opinion thus unequivocally put Ramos on notice that the success of any future amended complaint depended on her ability to allege specific facts regarding the existence of a TPP and Defendants conduct in connection thereto. On June 12, Plaintiff timely amended her complaint to assert claims for unjust enrichment and violations of the MCPA. (ECF No. 32).3 As in the original complaint, the amended complaint alleges that since Ramos submitted a completed FHA- 2 Although the original complaint asserted separate counts for violations of the MCPA and for unfair and deceptive trade practices, the claims were construed together as asserting a single cause of action under the MCPA. (ECF No. 30, at 8-9). 3 Plaintiff again pleads two separate counts for unfair and deceptive trade practices and violations of the MCPA. (ECF No. 32 at 7-8, 9-10). Consistent with the court s prior memorandum opinion, these two counts will be construed together as a single claim brought under the MCPA. 4 HAMP application packet to Defendants on February 3, 2011, numerous delays have prevented her from obtaining a permanent loan modification. allegedly acted Throughout deceptively this and time in period, violation Defendants of HAMP by: repeatedly losing Ramos s paperwork; asking her to re-produce documents they already possessed; maintaining inadequate staff to assist Plaintiff with the HAMP process; filter[ing] borrowers, including Plaintiff, through endless phone calls reroute[d] to various representatives who g[a]ve conflicting answers about HAMP; and attempt[ing] to bully Plaintiff into making decisions which [were] not in her best interests and were contrary to HAMP guidelines. (Id. ¶¶ 28-29). Defendants took other steps to thwart, delay or prevent Plaintiff the extension of offers for a permanent modification of her loan, which purportedly allowed them to charg[e] her improper fees and penalties. (Id. ¶ 28). Importantly, did not resolve Defendants. Plaintiff s whether newly Ramos added ever factual entered into allegations a TPP with In an early section of the amended complaint titled Defendants[ ] Course of Conduct, Plaintiff generally alleges that Defendants Plaintiff and entered thousands into of a standardized homeowners for a contract temporary modification of their existing note and mortgage. ¶ 14). with trial (ECF No. 32 Later, however, Plaintiff avers that Defendants violated 5 HAMP by [d]enying [her] a Permanent Modification or Trial Plan pursuant to her numerous requests for such (id. ¶ 28a) (emphasis added) and further alleges that Defendants denied her the opportunity to secure any . . . permanent modifications [of her loan] through the completion of the Trial Plans which she was never given (id. ¶ 42).4 Defendants filed the pending motion to dismiss the amended complaint Defendants (ECF No. filed a 33), which reply (ECF Ramos No. opposed 36) and (ECF a No. 35). Notice of Supplemental Authority (ECF No. 37) in support of their motion. II. Standard of Review The purpose of a motion to dismiss pursuant 12(b)(6) is to test the sufficiency of the complaint. to Rule Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff s complaint need only satisfy the standard of Rule 4 Presumably in an attempt to destroy diversity jurisdiction under 28 U.S.C. § 1332 and to obtain a remand back to state court, Plaintiff s amended complaint also prays for damages in the amount of $74,950.00 (ECF No. 32 ¶ 46) an amount that is significantly less than the $1 million prayed for in the original complaint (ECF No. 2 ¶ 70). It is well-established, however, that diversity jurisdiction is not affected where a plaintiff amends her complaint after removal to reduce[] the claim below the requisite amount [in controversy]. Gardner v. AMF Bowling Ctrs., Inc., 271 F.Supp.2d 732, 733 (D.Md. 2003) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938)); see also Hernandez v. Carlson Holdings, Inc., No. 10 00539 RDG, 2010 WL 4181455, at *1-2 (D.Md. Oct. 22, 2010) (post-removal amendment of a diversity complaint to seek less than $75,000 does not provide a basis for remanding to state court). 6 8(a), which requires a short and plain statement of the claim showing that the pleader is entitled to relief. 8(a)(2). Fed.R.Civ.P. Rule 8(a)(2) still requires a showing, rather than a blanket assertion, of entitlement to relief. v. Twombly, 550 U.S. 544, 555 n. 3 (2007). Bell Atl. Corp. That showing must consist of more than a formulaic recitation of the elements of a cause of action or naked assertion[s] devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). At this stage, the court must consider all well-pleaded allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, the court need not accept unsupported legal allegations. Revene v. Charles Cnty. Comm rs, 882 F.2d 870, 873 (4th Cir. 1989). Nor must it agree allegations, with legal conclusions couched as factual Iqbal, 556 U.S. at 678, or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). [W]here the well-pleaded facts do not permit the court to infer more than 7 the mere possibility of misconduct, the complaint has alleged, but it has not show[n] . . . that the pleader is entitled to relief. Iqbal, 8(a)(2)). 556 U.S. at 679 (quoting Fed.R.Civ.P. Thus, [d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing experience and common sense. court to draw on its judicial Id. III. Analysis Defendants principally contend that Plaintiff failed to amend her complaint in any meaningful way, such that dismissal is warranted under Rule 12(b)(6) for the same reasons set forth in the court s prior memorandum opinion and order. at 2-3). reasonable Specifically, conclusion Defendants that can be argue drawn (ECF No. 33, that from the the only factual inconsistencies that persist in Plaintiff s amended complaint is that Defendants never offered her a TPP agreement. Accordingly, Defendants argue that the remaining counts must be dismissed because they Defendants seek to alternatively enforce HAMP contend rather that than Plaintiff s any TPP. amended complaint must be dismissed because of pleading inadequacies. Plaintiff does not directly respond to Defendants arguments but instead submits an opposition brief that is virtually identical to the one she filed in response to Defendants first motion to 8 dismiss. (Compare ECF Nos. 27 and 35). Defendants arguments are well-taken. [W]hen a complaint contains inconsistent and contradictory statements, it fails to state a claim. self- Hosack v. Utopian Wireless Corp., No. DKC 11-0420, 2011 WL 1743297, at *5 (D.Md. 2011) (citing In re Livent Inc. Noteholders Sec. Litig., 151 F.Supp.2d 371, 406 (S.D.N.Y. 2001)). Here, despite clear instructions about the need to allege specific facts regarding the existence makes of a TPP, self-contradictory question. Plaintiff s statements amended regarding complaint this again critical Indeed, Ramos s newly added factual allegations all explicitly aver the non-existence of such a contract (see ECF No. 32 ¶¶ 28, 45), directly contradicting her conclusory allegation that she, along with millions of other homeowners, entered into a TPP agreement with Defendants (id. ¶ 15). In light of these inconsistencies, it cannot be said that this latter averment constitutes a well-pleaded allegation that must be taken as true in ruling on Defendants motion to dismiss. When the inconsistent TPP allegations are disregarded, the only remaining facts asserted in the amended complaint relate Defendants purported actions or inactions under HAMP. For example, in support of her MCPA claim, Plaintiff alleges that Defendants violated HAMP by denying her a loan modification; failing to maintain adequate staff to help Plaintiff with her 9 application; and generally preventing Plaintiff from obtaining a loan modification additional fees Plaintiff alleges enrichment all and for purpose penalties. similar claim, the (ECF conduct averring of No. 32 in support it that charging would ¶¶ of be Ramos 27-33). her unjust unjust for Defendants to retain the benefits they received from Plaintiff while they executed their multi-phase plan of not giving her a FHA-HAMP loan. factual (Id. ¶¶ 34-40). allegations assert In essence, all of Plaintiff s that Defendants pursuant to the HAMP guidelines. acted improperly As set in the court s prior memorandum opinion, however, Congress did not create a private right of action to enforce HAMP. the intent of the A plaintiff cannot circumvent legislature by recasting violations as alternative causes of action. alleged HAMP See, e.g., Parks v. BAC Home Loan Servicing, LP, 825 F.Supp.2d 713, 716 (E.D.Va. 2011) (dismissing a claim for breach of the implied duty of good faith and recast fair the Defendants enrichment HAMP dealing claim ). alleged and as HAMP MCPA claims it is merely Because they another rely violations, are not attempt to exclusively on Plaintiff s cognizable and unjust will be dismissed with prejudice. In any event, the amended complaint fails to remedy the pleading deficiencies memorandum opinion. identified in the court s previous The newly added allegations in support of 10 Ramos s fraud-based MCPA claim do not specify the time, place, or content of Defendants allegedly deceptive actions. No. 32 ¶¶ 27-33, 41-45). claim fails standard. Plaintiff s to comply (See ECF Accordingly, Plaintiff s amended MCPA with Rule 9(b) s heightened pleading Likewise, the conclusory allegations in support of unjust enrichment claim i.e., that Defendants unjustly received a benefit at Plaintiff s expense by engaging in deceptive conduct (id. ¶¶ 34-40) are insufficient to state a plausible claim for relief under Twombly and Iqbal. Hence, the amended complaint is also subject to dismissal for failing to meet the applicable pleading standards. IV. Conclusion For the foregoing reasons, the motion to dismiss filed by Defendants will be granted. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 11
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