Mortgages – Foreclosure

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Where a plaintiff college student sued the defendant bank after it foreclosed on the plaintiff’s property, all 17 counts of the plaintiff’s complaint are baseless and the defendant’s motion to dismiss must as a result granted.

“Counts 1, 2, and 3 rely on the same alleged conduct by the [defendant] Bank and purport to assert, respectively, claims for breach of contract, negligent breach of contract, and breach of the covenant of good faith and fair dealing. Each count alleges that the Bank had a duty under the mortgage to ‘permit [plaintiff] every opportunity available to salvage the Mortgage’ (Docket # 1 Ex. A at ¶¶ 82, 90, 97) through reinstatement, loan modification, and refinancing, among other things. No such duty exists, either at common law or by the terms of the loan or mortgage. …

“Count 17, which purports to state a claim for ‘statutory violations,’ merely incorporates every allegation in the preceding 181 paragraphs, states plaintiff’s ‘belie[f]’ that the Bank has violated several laws, and then reserves the right to assert such claims after discovery.

“Counts 6-10 are styled as claims for ‘mortgage services fraud’ for, among other things, ‘preying on the ignorance of the court and [plaintiff]’ (Count 6), ‘manipulating account records’ (Count 7), and ‘creating additional false deficiencies through a variety of questionable practices’ (Count 8). At most, these counts — each of which is premised on the same alleged conduct by the Bank — state conclusory allegations; none meets the heightened pleading standard for fraud under Fed. R. Civ. P. 9(b).  Counts 12 and 16, for fraudulent representations and fraud, respectively, are similarly deficient.

“Defendant’s Motion to Dismiss (Docket # 8) is allowed without prejudice. The court will grant plaintiff leave to file a Second Amended Complaint within 14 days of this order; however, the court reminds plaintiff’s counsel of her obligations under Fed. R. Civ. P. 11(b). Any complaint that is filed must comply with Rules 8 and 9 of the Federal Rules of Civil Procedure and must only assert claims that are legally and factually viable. A lawsuit is not a game.”

Aleshire  v. Wells Fargo Home Mortgage, Inc. (Lawyers Weekly No. 02-286-11) (6 pages) (Zobel, J.) (USDC) (Civil Action No. 10-12066-RWZ) (Sept. 30, 2011).

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