Fam v. Bank of America NA (USA)

236 F. Supp. 3d 397, 2017 WL 706151, 2017 U.S. Dist. LEXIS 24312
CourtDistrict Court, District of Columbia
DecidedFebruary 22, 2017
DocketCivil Action No. 15-1943 (BAH)
StatusPublished
Cited by33 cases

This text of 236 F. Supp. 3d 397 (Fam v. Bank of America NA (USA)) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fam v. Bank of America NA (USA), 236 F. Supp. 3d 397, 2017 WL 706151, 2017 U.S. Dist. LEXIS 24312 (D.D.C. 2017).

Opinion

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Plaintiff Mark Fam, who is proceeding pro se, brings this action against his loan servicers Bank of America, N.A. (“BANA”) and Green Tree Servicing LLC, now known, as Ditech Financial LLC (“Di-tech”). First Am. Compl. (“FAC”) at 1, ECF No. 18. The plaintiff asserts claims for violations of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1634 et seq., and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., as well as for breach of contract, common law fraud, and breach of the implied covenant of good faith and fair dealing. These violations all stem from; the plaintiffs March 2012 mortgage refinancing. Id. ¶¶ 143-73. Pending before the- Court are Ditech and BANA’s respective Motions to Dismiss, see Mot. Dismiss by Ditech Financial LLC, Green Tree Servicing LLC (“Ditech MTD”), ECF No.. 19; Mot. Dismiss by Bank of America' NA (USA) (“BANA MTD”), ECF No. 25, and the plaintiffs motion for default judgment as to BANA, see Pl.!s Mot. Default Judgment as to Bank of America (“Pl.’s Mot. Default Judgment”), ECF No. 26. Defendants move to dismiss' the complaint primarily for improper -venue as well as for failure to state a claim upon which relief may be granted, pursuant to Rules 12(b)(3) and 12(b)(6) respectively, of the Federal Rules of Civil Procedure. For the reasons set forth below, the plaintiffs case is transferred to the Eastern District of Virginia.

[400]*400I. BACKGROUND

■The plaintiff, a resident of the Commonwealth of Virginia, refinanced his home with BANA in March 2012, sought a forbearance in April 2013, and was purportedly granted a six-month forbearance in May 2013, with the possibility of an additional six-month extension. See FAC ¶¶ 1, 4, 18, 24-29, 53. The plaintiff claims that in October 2013,- he-requested the second six-month forbearance period. Id. ¶ 57. Nonetheless, in November 2013, servicing of the loan wás transferréd to Ditech, which did not honor or consider the additional six-month forbearance. See id ¶¶ 69-70, 100. Instead, Ditech immediately attempted to collect arrearages on the' loan and, beginning in 2014, sought to: foreclose the plaintiffs home of thirty years. Id ¶¶ 102-06. The plaintiff also alleges that in August 2014, he “[effected a [rescission of the March 18, 2012 mortgage loan by sending a Notice of Rescission” to both BANA and Ditech. Id ¶ 5; see also id. ¶¶ 15,106,109, 113. The details relevant to the pending motions are discussed below.

A. The Mortgage Refinance

The plaintiff resides in Alexandria, Virginia and, on March 18, 2012, closed a home refinance loan for his property with BANA. Id ¶ 1. The settlement took place in Virginia' at a BANA branch with which the plaintiff was not familiar, though he notes that the loan closer “was sent from an office in Washington, D.C,” and had “first suggested meeting at an office in Washington D.C.”■/& The loan closer encouraged the plaintiff, who was not represented-by counsel, to sign the documents quickly. Id, Although the plaintiff was shown' disclosure notices, he was not given any notices to keep, as the loan closer, left the room “to make copies” and never returned. Id ¶¶ 1-2. Eventually, bank employees asked the plaintiff to leave the. branch, and told the plaintiff to contact the loan closer in order to obtain copies of the documents he signed, suggesting the plaintiff would receive the copies in the mail. Id ¶¶ 2-3. The following day, the plaintiff contacted the branch manager for the location where he signed the new mortgage loan in hopes of contacting the loan closer. Id. The manager told the plaintiff, “I’ve not seen him before,” and the plaintiff was at a loss for how to find the person who had taken the only copy of his signed mortgage loan documents. Id ¶ 3. The plaintiff was never given any copies of the, forms that he saw during the loan closing. Id. ¶ 4.

B. The Forbearance Agreement Promised by BANA, Followed by the Alexandria City Police SWAT Team

In April 2013, just over a year after refinancing his mortgage, the plaintiff placed a series of calls to BANA to “inquire about possible mortgage relief assistance options.” Id 1117. During the first three calls, the plaintiff was given a variety of reasons why he was not eligible for assistance, including the date of origination for the loan, that he was not behind on his mortgage payment, and that his health concerns were not “cancer.” Id ¶¶ 17-19. The plaintiff “made a series of verbal and written complaints to the senior executives and to the Board of Director[s].” Id ¶ 22. At all times, the plaintiff was current on his mortgage, though he did leave his job during this time period due to medical issues. Id ¶¶ 20, 22.

The plaintiff subsequently discovered that the Federal National Mortgage Association, commonly known as “Fannie Mae,” “had some stake in the home loan” and began lobbying Fannie Mae “by telephone, emails, and by U.S. mail and by in-person visits to .[Fannie Mae] headquarters in!’ the District of Columbia. Id. ¶ 23. On May [401]*4017, 2013, a Fannie Mae senior manager informed the plaintiff that several relief assistance programs were available to him and that her office had instructed BANA to contact the plaintiff about those options. Id. ¶¶ 23-24,, .Later that same1 day, Daniel Whitehead, “a Vice President-Unit Manager in ... [BANA’s] Default Servicing Complaint Resolution- Department” contacted the plaintiff and offered: “A) one-year forbearance, with no payments; divided into two ‘six-month segments[,]’, and, B) no escrow, no tax capture or insurance payment, and C) no adverse notations in [BANA] record's, and D) no negative credit reporting to any consumer reporting agency, and, E) no late fees would be charged to the [plaintiffs] account for the duration of the Special Forbearance.” Id. ¶24. Whitehead added “that the arrearage created by the one-year forbearance would be ‘put on the back end of the loan.’ ” Id. The plaintiff requested a chance to “think about the offer overnight and said he would call Whitehead the next day.” Id.

The.next day, May 8, 2013, Whitehead told the plaintiff that he “had full authority to produce and secure the forbearance agreement and that ... all the [plaintiff] had to do was notify [Whitehead] that [the plaintiff] needed the second half of the forbearance.” Id. ¶ 27. The plaintiff agreed to all of the terms except that he requested to pay some amount each month of the forbearance. Id. ¶29. The parties agreed that the plaintiff would pay $425 on the 15th of each month during, the forbearance. Id.

When the plaintiff received the Special Forbearance Agreement (“SFA”) via email on May 17, 2013 and FedEx on May 18, 2013, however, the documents were dated May 10, 2013, “two days after the [plaintiff] and Whitehead entered into a verbal agreement on the terms and conditions of the SFA,” and required that the first payment under the agreement be paid by May 15, 2013. Id. ¶¶ 30-31.

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236 F. Supp. 3d 397, 2017 WL 706151, 2017 U.S. Dist. LEXIS 24312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fam-v-bank-of-america-na-usa-dcd-2017.