Gregor v. Aurora Bank FSB

26 F. Supp. 3d 146, 2014 WL 2767384, 2014 U.S. Dist. LEXIS 83182
CourtDistrict Court, D. Rhode Island
DecidedJune 18, 2014
DocketC.A. No. 13-218
StatusPublished
Cited by1 cases

This text of 26 F. Supp. 3d 146 (Gregor v. Aurora Bank FSB) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gregor v. Aurora Bank FSB, 26 F. Supp. 3d 146, 2014 WL 2767384, 2014 U.S. Dist. LEXIS 83182 (D.R.I. 2014).

Opinion

MEMORANDUM AND ORDER

RONALD R. LAGUEUX, Senior District Judge.

This matter is before the Court on motions to dismiss brought by both Defendants. Plaintiffs Bethany A. Gregor and Clovis C. Gregor (“Plaintiffs”) allege that the bank that provided their home mortgage loan fraudulently failed to make required disclosures to them at the time of the loan’s closing. Plaintiffs seek to represent a class of similarly-situated home owners. Defendant Aurora Bank FSB, formerly known as Lehman Brothers Bank, FSB (hereinafter “Aurora” in reference to both entities), has moved to dismiss two pendent state law claims on the grounds that these claims are preempted by the federal statute on which Count I is based. Defendant Federal National Mortgage Association (“Fannie Mae”) moves to dismiss all counts against it, based on its assertion that it was not a party to the transaction which is the subject of the lawsuit. For the reasons explained below, the Court grants both motions of Defendants, dismissing two claims against Aurora, and dismissing all claims against Fannie Mae.

Background

In February 2007, Plaintiffs obtained a mortgage loan from Aurora for their Paw-tucket, Rhode Island, residence. Soon after the loan’s closing, Aurora sold the loan to Fannie Mae. In January 2013, Plaintiffs tried to refinance their mortgage, seeking a more favorable interest rate than had [148]*148been available in 2007. Their efforts encountered an unforeseen obstacle: the loan was burdened by a mortgage insurance policy purchased by Aurora. The. presence of mortgage insurance on the loan made it impossible for Plaintiffs to refinance their loan at a lower rate of interest, or to take advantage of the federal homeowner assistance program, the Home Affordable Refinance Program or “HARP.” According to Plaintiffs, Aurora failed to tell them about the mortgage insurance policy at the time of the closing, as is required by law. Moreover, Plaintiffs state that they were never informed that their mortgage had been sold to Fannie Mae!

Banks often require mortgage insurance on a loan when the amount of the loan is more' than eighty-percent of the value of the property. This type of insurance provides protection to lenders from the risks of borrowers’ defaults, while providing an opportunity for home-buyers to purchase a house even if they haven’t saved enough for the customary twenty-percent down-payment. Sometimes lenders require the borrowers to purchase the insurance and pay the premiums; in other' instances, lenders purchase the policy themselves, passing the cost along to the borrowers in the form of higher interest rates. In the early 2000s, many banks waived (or claimed to waive) the mortgage insurance requirement, even for -high-ratio loans, in order to more competitively market their services to home-buyers.

According to Plaintiffs, Aurora had the intention, at the time of the loan’s consummation, to sell the loan to Fannie Mae. Aurora knew that Fannie Mae would require mortgage insurance on Plaintiffs’ loan because of its high loan-to-value ratio. In their Amended Complaint, Plaintiffs allege that “based on normal industry practice, Aurora and FNMA [Fannie Mae] acted in concert with regards to the origination and sale of the'loan.” Plaintiffs allege further that both Defendants were aware of the plan to place mortgage insurance on Plaintiffs’ property prior to the closing. Nonetheless, the closing documents represented that there was no mortgage insurance on the property. This representation was made by way of omission — the space for disclosure of mortgage insurance was left'blank.

The Complaint

Plaintiffs’ First Amended Complaint (“the Complaint”) states three causes of action against both Defendants (on behalf of themselves and similarly-situated borrowers).1 Count I asserts that both Defendants violated the federal Homeowners Protection Act, 12 U.S.C. § 4905, by failing to disclose the lender-purchased mortgage insurance on their property at the closing. Count II is for fraudulent concealment, claiming that both Defendants, with intent to deceive, concealed from Plaintiffs the fact that the loan was encumbered by mortgage insurance, with the result that it is now impossible for Plaintiffs to refinance their home. Count III asserts that Defendants were unjustly enriched when they 1) wrongfully purchased mortgage insurance for the loan thereby making it more marketable on the secondary market, solely for their own benefit; 2) charged Plaintiffs higher rates of interest on the loan; and 3) when they continued to collect interest on the loan at a higher rate than Plaintiffs would have had to pay had they been able to refinance their mortgage in 2013. Plaintiffs seek actual damages, statutory damages, punitive damages, attorneys’ fees [149]*149and costs, as well as an order requiring Defendants to cancel the mortgage insurance on the loan.

Standard of review

Defendants move to dismiss the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. In considering a Rule 12(b)(6) motion, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiffs favor. Aulson v. Blanchard, 88 F.3d 1, 3 (1st Cir.1996). The United States Supreme Court has recently refashioned the standard as follows: “[0]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Since Twombly, the Supreme Court further refined its requirements in Ashcroft v. Iqbal:

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. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.

556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations and quotations omitted). The Iqbal Court added that, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Analysis

Aurora

Because the Defendants are situated differently, the Court will address them individually, starting with Defendant Aurora. Aurora has not moved to dismiss Count I, which alleges that it violated the federal Homeowners Protection Act, 12 U.S.C. § 4905

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Bluebook (online)
26 F. Supp. 3d 146, 2014 WL 2767384, 2014 U.S. Dist. LEXIS 83182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregor-v-aurora-bank-fsb-rid-2014.