Echeverria v. BAC Home Loans Servicing, LP

900 F. Supp. 2d 1299, 2012 WL 5227015, 2012 U.S. Dist. LEXIS 151600
CourtDistrict Court, M.D. Florida
DecidedOctober 22, 2012
DocketCase No. 6:10-cv-1933-Orl-28DAB
StatusPublished
Cited by7 cases

This text of 900 F. Supp. 2d 1299 (Echeverria v. BAC Home Loans Servicing, LP) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Echeverria v. BAC Home Loans Servicing, LP, 900 F. Supp. 2d 1299, 2012 WL 5227015, 2012 U.S. Dist. LEXIS 151600 (M.D. Fla. 2012).

Opinion

ORDER

JOHN ANTOON II, District Judge.

In this case, Plaintiffs, Abdiel Echeverría (“Echeverría”) and Isabel Santamaría (“Santamaría”), have filed pro se a four-count Third Amended Verified Complaint (“Third Amended Complaint”). (Doc. 49) against Defendants, BAC Home Loans Servicing, LP (“BAC”) and Bank of America, N.A. stemming from BAC’s conduct while servicing Plaintiffs’ home loan. Defendants have filed a motion to dismiss and a motion for summary judgment as to all claims.1 As explained below, the Court concludes that Counts Three (RICO) and Four (“Infliction of Emotional Distress”) do not survive Defendants’ Motion to Dismiss and that Counts One (RESPA) and Two (Fraudulent Misrepresentation) do not survive Defendants’ Motion for Summary Judgment. The Court will address each motion in turn.2

I. Background

Plaintiffs purchased their home on February 29, 2008, with loan assistance from the Federal Housing Administration. (Third Am. Compl. ¶ 1). On the same day, Plaintiffs executed a promissory note in favor of the original lender, Taylor, Bean & Whitaker Mortgage Corporation (“TBW”). (Id. ¶ 13). Later, in September 2009, a third party not affiliated with TBW or Defendants informed Plaintiffs that their loan had been sold to BAC. (Id. ¶ 14). [1303]*1303Plaintiffs requested a loan modification from BAC in 2009 but were told that they did not qualify. (Id. ¶ 17). Plaintiffs eventually missed their loan payment for November 2009. (Id.). Plaintiffs allege that BAC then told them in January 2010 that they “pre-qualified for a loan modification.” (Id.). On September 27, 2010, BAC denied Plaintiffs’ request for a loan modification. (Id. ¶ 22).

II. Motion to Dismiss

Plaintiffs’ Third Amended Complaint alleges four counts against Defendants — violations of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. (Count One); Fraudulent Misrepresentation (Count Two); violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. (Count Three); and “Infliction of Emotional Distress” (Count Four).

A. Legal Standard for Motions to Dismiss

“A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “ ‘[D]etailed factual allegations’ ” are not required, but “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “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.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

B. Count Three — RICO

Plaintiffs claim that Defendants are liable to them under 18 U.S.C. § 1964(c) for alleged “racketeering activity” including mail fraud, wire fraud, theft, and forgery. (Third Am. Compl. ¶ 56). Section 1964(c) provides for recovery only for “[a]ny person injured in his business or property.” “[T]he Supreme Court has declared that Congress’ limitation of recovery to business or property injury ‘retains restrictive significance. It would for example exclude personal injuries suffered.’ ” Genty v. Resolution Trust Corp., 937 F.2d 899, 918 (3d Cir.1991) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979)). Accordingly, “[a] plaintiff asserting a claim under § 1964(c) of RICO must allege economic injury arising from the defendant’s actions.” Ironworkers Local Union 68 v. AstraZeneca Pharms., LP, 634 F.3d 1352, 1361 (11th Cir.2011).

Despite this Court’s prior ruling to the contrary, Plaintiffs continue to assert that their personal injuries can satisfy the injury element of a RICO claim.3 Plaintiffs allege that “Isabel Santamaría ... was injured in her ‘property1 when bombarded with threats via mail communication (‘mail fraud’) and harassing telephone calls made to her home telephone number” and that “Plaintiffs emotional and physical symptoms were displayed and initiated on her property.” (Third Am. Compl. ¶ 61). Plaintiffs’ creative attempt to construe personal injuries suffered in one’s home as injuries in one’s “property” is of no avail. Section 1964(c) excludes personal injuries, see, e.g., Genty, 937 F.2d 899, and therefore Plaintiffs’ allegations of emotional distress and related physical symptoms do [1304]*1304not suffice to state a claim under RICO. Plaintiffs’ RICO claim is therefore DISMISSED with prejudice.4

C. Count Four — Infliction of Emotional Distress

While Plaintiffs bring a single count for “Infliction of Emotional Distress,” it is clear that they intend to state a claim for both intentional infliction of emotional distress and negligent infliction of emotional distress. Plaintiffs allege that they suffered emotional distress and related physical injuries as a result of Defendants’ “intentional, reckless, and/or negligent” conduct. (Third Am. Compl. ¶ 76). The allegedly wrongful conduct consists entirely of actions related to Plaintiffs’ loan modification application and the servicing of Plaintiffs’ loan, such as “threatening with foreclosure over the phone and by mail” and “repeatedly losing or misplacing Plaintiffs’] personal and financial documentation.” (Id. ¶ 73).

To establish a cause of action for intentional infliction of emotional distress, a plaintiff must show that the intentional conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985); see also Scheller v. Am. Med. Int'l Inc., 502 So.2d 1268, 1270-71 (Fla. 4th DCA 1987). Whether the alleged conduct meets this exacting standard is a question for the court to decide as a matter of law. Vance v. S. Bell Tel. & Tel. Co., 983 F.2d 1573, 1575 n. 7 (11th Cir.1993).

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Bluebook (online)
900 F. Supp. 2d 1299, 2012 WL 5227015, 2012 U.S. Dist. LEXIS 151600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/echeverria-v-bac-home-loans-servicing-lp-flmd-2012.