Tag Archives: misrepresentation

Missouri Court Dismisses Predatory Lending & TILA Claims

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The court in deciding Fleming v. Bank of Am., 2013 U.S. Dist. LEXIS 150758 (W.D. Mo. Oct. 21, 2013) found the plaintiff’s argument and complaint to be filled with legal conclusions and disjointed, conclusory allegations. The court noted that the complaint frequently referred simply to “Defendant” or “Defendants” with no indication as to which specific defendant was implicated, and sometimes seemed to confuse “Plaintiff” with “Defendant.”

Plaintiff asserted the following eight claims: (1) predatory lending and violations of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq.; (2) servicer fraud; (3) violations of the Home Ownership and Equity Protection Act (“HOEPA”)’s amendments to TILA, §§ 1639 et seq.; (4) violations of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq.; (5) breach of fiduciary duty; (6) identity theft; (7) civil liability under the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964; and (8) quiet title to real property.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants moved to dismiss Fleming’s complaint for failure to state a claim. After considering the plaintiff’s arguments the court ultimately granted defendants Bank of America and MERSCorp Holdings, Inc.’s motion to dismiss.

Michigan Court Dismisses Claim Seeking $4,500,000.00 in Damages

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The court in deciding Kemp v. Resurgent Capital Servs., 2013 U.S. Dist. LEXIS 150713 ( E.D. Mich. Oct. 21, 2013) ultimately dismissed the plaintiff’s claim and request for $4,500,000.00.

The complaint made the following claims: Count I lack of standing, Count II and III common law fraud and injurious falsehood, Count IV violation of Fair Debt Collection Practices Act, Count V violation of Truth in Lending Act, Count VI violation of UCC 3-302, Count VII negligent undertaking, and Count VIII negligent misrepresentation.

The plaintiff essentially claimed that defendants wrongfully foreclosed on her property. Due to this wrongful foreclosure, she sought a declaration that she was the rightful owner of the property. She further sought a money judgment in the amount of $4,500,000.00.

The court considered the plaintiffs arguments and ultimately dismissed her claim.

As to Count I, the court found that this claim failed against Quicken Loans for the simple reason that Quicken Loans had no interest in either loan and had no role in the foreclosure proceedings. As to the remaining counts, the court found that Quicken Loans was correct in that the plaintiff’s claims were barred by the applicable statute of limitations.

Michigan Court Dismisses Fair Debt Collection Practices Act Claim

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The court in deciding Mullins v. Fannie Mae, 2013 U.S. Dist. LEXIS 150718 (E.D. Mich. 2013) granted the defendant’s motion to dismiss.

The plaintiff brought six causes of action: Count I—Fraudulent Misrepresentation; Count II—Estoppel; Count III—Negligence; Count IV—Violation of the Regulation of Collection Practices Act; Count V—Violation of the Fair Debt Collection Practices Act; and Count VI—violation of the Michigan Consumer Protection Act.

The court dismissed the plaintiff’s fraud claims because the plaintiff had not provided a signed writing by an authorized representative of Fannie Mae regarding a promise to modify her loan. The court noted that even if she had stated a claim of fraud, her claim must be dismissed.

With regards to the plaintiff’s negligence claims, the court found that Fannie Mae had no duty to review, thus there could be no breach.

Under Michigan law, the Regulation of Collection Practices Act (“RCPA”) governs the collection practices of certain persons. However, after considering the plaintiff’s argument, the court found that the statute did not authorize a claim based upon a plaintiff’s reluctance to dispute the validity of a debt because of the timing of the validation. Citing similar grounds, the court ultimately dismissed the remaining claims.

Lower Court’s Grant of Summary Judgement Affirmed by Nevada Court

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The court in deciding Castro v. Bank of N.Y. Mellon, 2013 Nev. LEXIS 1602 (Nev. 2013) affirmed the lower courts judgment against the plaintiff.

Plaintiff obtained a home loan from Decision One Mortgage Company, LLC and executed a promissory note in favor of Decision One. The note was secured by a deed of trust naming Decision One as the lender and MERS, as the beneficiary and nominee of the lender. The deed of trust authorized MERS, as nominee of the lender, to transfer the deed of trust and appoint a successor trustee.

MERS assigned the deed of trust to defendant, who instituted this action for quiet title seeking to expunge the documents that appellants recorded. Defendant moved for summary judgment, which was not opposed by plaintiff. Plaintiffs provided no evidence of any kind to the district court, and the district court entered summary judgment in respondent’s favor.

The court considered the plaintiff’s assertions, and concluded that the district court properly entered summary judgment in defendant’s favor.

North Carolina Court Dismisses Plaintiff’s Claims of Fraud Against MERS, Bank of America, & Trustee Services of Carolina

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The court in deciding Porterfield v. JP Morgan Chase Bank, Nat’l Ass’n, 2013 U.S. Dist. LEXIS 152318 (E.D.N.C. 2013) dismissed plaintiff’s claims and granted the defendant’s motion to dismiss.

Plaintiff asserted the following claims: (1) wrongful foreclosure; (2) fraud; (3) fraudulent misrepresentation; (4) fraud by use of MERS; (5) fraud through securitization; (6) promissory fraud; (7) unfair and deceptive trade practices; (8) violations of the Fair Debt Collections and Practices Act; (9) violations of the Real Estate Settlement Procedures Act; (10) slander of title; and (11) a quiet title action.

JPMorgan Chase Bank, N.A. and MERS motioned to dismiss pursuant to FED. R. CIV. P. 12(b)(6) and defendant Trustee Services of Carolina motioned to dismiss to Fed. R. Civ. P. 12(b)(6).

The court ultimately granted the defendants’ motions. Plaintiff’s claims against JPMorgan Chase Bank, MERS, and Trustee Services of Carolina, LLC were dismissed with prejudice.

Michigan Court Finds All Six of Plaintiff’s Claims Without Merit

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The court in deciding McGlade v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 152610 (E.D. Mich. Oct. 24, 2013) granted defendant Bank of America, N.A.’s motion to dismiss.

Plaintiff, McGlade brought six causes of action: Count I-Fraudulent Misrepresentation; Count II-Estoppel; Count III-Negligence; Count IV-Violation of the state Regulation of Collection Practices Act; Count V-Violation of the Fair Debt Collection Practices Act; and Count VI-violation of the Michigan Consumer Protection Act.

The court in granting defendant summary judgment noted that the plaintiff’s factual basis for the fraudulent misrepresentation claim that defendant “knew or should have known that she would not qualify for a loan modification when she inquired about one” was insufficient.

Ultimately, the court found that the misconduct alleged by McGlade did not relate to the foreclosure procedure itself, and therefore she had failed to state a claim for which relief can be granted.

California Court Dismisses Plaintiff’s Action Alleging Violations of RESPA, HOEPA, UCL & Negligent Misrepresentation

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The court in deciding Monreal v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 151731 (S.D. Cal. Oct. 22, 2013) granted the defendants’ motion to dismiss plaintiff’s claims arising under federal law with prejudice, and declined to exercise supplemental jurisdiction over the plaintiff’s remaining state-law claims. Therefore, the remaining state-law claims are dismissed without prejudice.

Plaintiff alleged four causes of action against Deutsche Bank, GMAC, ETS, and MERS, including: (1) violation of the UCL; (2) negligent misrepresentation; (3) violation of RESPA; and (4) violation of HOEPA. In total plaintiff alleged two claims arising under federal law, RESPA and HOEPA, and two claims arising under state law, negligent misrepresentation and violation of the UCL.

In deciding the matter at hand, the court decided that their subject matter jurisdiction was premised on federal question jurisdiction over the claims arising under federal law, and supplemental jurisdiction over the pendent state-law claims.

Accordingly, because the court found that plaintiff failed to state a viable cause of action under either RESPA or HOEPA, the court dismissed the federal causes of action with prejudice, and declined to exercise supplemental jurisdiction over the remaining state-law claims.

As a result, the Court did not address the merits of the plaintiffs’ state-law causes of action.