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Casey v. Bank of America, N.A.

United States District Court, E.D. Virginia, Norfolk Division

January 4, 2017

MICHAEL L. CASEY, Plaintiff,
v.
BANK OF AMERICA, N.A., Defendants.

          OPINION & ORDER

          HENRY COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court pursuant to Defendant Bank of America, N.A.'s ("Defendant" or "BANA") Motion to Dismiss ("Motion"). Doc. 6. For the reasons stated herein, the Court DENIES the Motion as to Counts I and II and GRANTS the Motion as to Count III.

         I. BACKGROUND

         A. Factual Allegations[1]

         On March 21, 1994, Michael L. Casey ("Plaintiff) entered into a mortgage loan, evidenced by a note and secured by a deed of trust, to purchase a home. Am. Compl. ¶ 8. Bank One Mortgage Corporation was the original lender on the mortgage and BANA became the holder of the note. Id. At some point, Plaintiff fell behind on his mortgage payments. Am. Compl. ¶ 10. In early 2009, Plaintiff entered into discussions with BANA regarding loan modification. Am. Compl. ¶ 11.

         On April 26, 2010, when Plaintiff was in arrears and BANA was threatening foreclosure, a BANA representative "assured [Plaintiff] that if he paid [BANA] $11, 000 in spendable funds within 48 hours thereafter, he would be current and would not face any foreclosure action." Am. Compl. ¶ 18. BANA further assured Plaintiff that "he would remain current on what would be a loan modification by making ten monthly payments of $1, 390, with the first of those $1, 390 payments to be made on May 26, 2010 and the remaining payments on the 26 day of successive months." Id; Doc. 9 at 2. Plaintiff timely delivered $11, 000 in spendable funds, in the form of a cashier's check, to a branch office of BANA in Norfolk "and delivered the same to Linda Rudnick, Personal Banker at that branch of [BANA]." Am. Compl. ¶ 21. BANA, through Ms. Rudnick, accepted Plaintiffs $11, 000 cashier's check. Am. Compl. ¶ 22. In accepting Plaintiffs funds, Ms. Rudnick repeated the assurances made by the initial BANA representative, "to wit: that if [Plaintiff] paid the $11, 000 in spendable funds within 48 hours, he would be current and would not face any foreclosure action." Am. Compl. ¶¶ 18, 22; Doc. 9 at 2. Plaintiff avers that BANA, in accepting his funds and making such statements, did so fraudulently and without any intent to abide by its [ ] fraudulent assurance." Am. Compl. ¶ 22. Further, Plaintiff claims Ms. Rudnick, "in repeating the said assurances, made such assurances as an intentional falsehood with intent to mislead [Plaintiff], and did mislead [Plaintiff]." Id.

         Plaintiff claims BANA retained Plaintiffs $11, 000 "for a material period of time before returning the same to [Plaintiff]." Am. Compl. ¶ 23. "After accepting the $11, 000 cashier's check, [BANA] instructed a substitute trustee to foreclose on the home. The substitute trustee advertised the home for sale on May 26, 2010." Am. Compl. ¶¶ 25, 26. After the advertisement was published, BANA sent Plaintiff documents and instructed Plaintiff "to return the documents along with a considerable sum of money to be considered for a loan modification." Am. Compl. ¶ 27. BANA then called Plaintiff and informed him "a 'negotiator' would call him to discuss." Am. Compl. ¶ 28. Plaintiff obtained legal counsel and filed a lawsuit that resulted in the cancelation of the foreclosure scheduled for May 26, 2010. Am. Compl. ¶ 29.

         B. Procedural History

         This case was removed to this Court on August 5, 2016. Doc. 1. On August 15, 2016, Plaintiff filed the Amended Complaint in this Court. Doc. 5. On August 31, 2016, BANA filed the instant Motion to Dismiss. Doc. 6. On September 15, 2016, Plaintiff responded in opposition to BANA's Motion. Doc. 9. Also on September 15, 2016, Plaintiff filed a Motion for Leave to File Late Memorandum in Opposition to Motion to Dismiss ("Motion for Leave"). Doc. 10. On October 7, 2016, the Court DISMISSED Plaintiffs Motion for Leave as MOOT. Doc. 13. On October 11, 2016, Plaintiffs counsel filed a Motion to Withdraw Appearance as Counsel and for Removal from Electronic Notification Lists ("Motion to Withdraw"). Doc. 14. On October 26, 2016, the Court GRANTED Plaintiffs counsel's Motion to Withdraw. Doc. 17.

         II. LEGAL STANDARDS

         Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss tests the sufficiency of a complaint; it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses. Republican Party of N.C. v. Martin. 980 F.2d 943, 952 (4th Cir. 1992). "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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Venkatraman v. REI Sys.. Inc., 417 F.3d 418, 420 (4th Cir. 2005) ("In considering a motion to dismiss, we accept as true all well-pleaded allegations and view the complaint in the light most favorable to the plaintiff) (citing Mylan Labs.. Inc. v. Matkari. 7 F.3d 1130, 1134 (4th Cir. 1993)). A complaint establishes facial plausibility "once the factual content of a complaint allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Nemet Chevrolet Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250, 256 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Therefore, the complaint need not include "detailed factual allegations" as long as it pleads "sufficient facts to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of misconduct." Id. Although a court must accept as true all well-pleaded factual allegations, the same is not true for legal conclusions. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

         In deciding the motion, a court may consider the facts alleged on the face of the complaint as well as "'matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.'" Moore v. Flagstar Bank, 6 F.Supp.2d 496, 500 (E.D. Va. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (1990)). The court may look to documents attached to the complaint and those incorporated by reference without converting a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. See Pueschel v. United States, 369 F.3d 345, 353 n.3 (4th Cir. 2004) (citations omitted).

         Additionally, "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). To satisfy the heightened pleading standard of Rule 9(b), a Plaintiff must plead with particularity "the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby." In re Mut. Funds Inv. Litig., 566 F.3d 111, 120 (4th Cir. 2009) (quoting Harrison v. Westinghouse Savannah River Co.,176 F.3d 776, 784 (4th Cir. 1999)). However, "Rule 9(b) allows conclusory allegations of defendant's knowledge as to the true facts and of defendant's intent to deceive." Harrison, 176 F.3d at 786; see also Fed.R.Civ.P. 9(b) ("Malice, intent, knowledge, and other condition of mind of a person may be averred generally."). In ...


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