Travers v. Bank of America, N.A. (In re Travers)

507 B.R. 62, 2014 Bankr. LEXIS 1152
CourtUnited States Bankruptcy Court, D. Rhode Island
DecidedMarch 25, 2014
DocketBankruptcy No. 11-12650; Adversary No. 11-01047
StatusPublished
Cited by11 cases

This text of 507 B.R. 62 (Travers v. Bank of America, N.A. (In re Travers)) is published on Counsel Stack Legal Research, covering United States Bankruptcy 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
Travers v. Bank of America, N.A. (In re Travers), 507 B.R. 62, 2014 Bankr. LEXIS 1152 (R.I. 2014).

Opinion

MEMORANDUM AND ORDER GRANTING MOTION TO DISMISS

(this relates to Doc. # 38)

DIANE FINKLE, Bankruptcy Judge.

Defendant Bank of America, N.A. seeks dismissal of this adversary proceeding brought by Plaintiff-Debtor Inez Travers for statutory damages, rescission of the Defendant’s mortgage against her residence, and attorney’s fees for alleged violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”) and Regulation Z, 12 C.F.R. § 226.1.1 In ruling on [66]*66the motion, I have considered the Plaintiffs Complaint for Declaratory Judgement [sic] Equitable Relief, Rescission, Recoupment, and Damages (Doc. # 1)2 (the “Complaint”), the Answer of Bank of America, N.A. (Doc. # 18) (the “Answer”), Bank of America, N.A.’s Motion to Dismiss (Doc. # 38) (the “Motion to Dismiss”), the Plaintiffs Objection to Motion to Dismiss (Doc. # 49) (the “Objection”), the Supplemental Memorandum of Law in Support of Bank of America, N.A.’s Motion to Dismiss (Doc. # 66) (the “Defendant’s Supplemental Memorandum”), and the Plaintiffs Supplemental Memorandum of Law (Doc. # 96) (the “Plaintiffs Supplemental Memorandum”). Among other grounds,3 the Defendant moves to dismiss the Complaint for lack of jurisdiction because there is no longer a bankruptcy estate, the Plaintiffs underlying bankruptcy case having been closed quite some time ago. After due consideration, I conclude that this Court no longer has subject matter jurisdiction over this matter. On that basis, this adversary proceeding should be dismissed.

1. STANDARD OF REVIEW

The Defendant moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(1).4 Procedurally, this rule permits a party to assert lack of subject matter jurisdiction as a defense by way of a motion to dismiss. “The partfy] asserting jurisdiction, here the [P]laintiff[ ], [has] the burden of demonstrating the existence of federal jurisdiction.” Acosta-Ramirez v. Banco Popular de Puerto Rico, 712 F.3d 14, 20 (1st Cir.2013). The issue of subject matter juris diction should be resolved before addressing the merits of the action. See Morales Feliciano v. Rullan, 303 F.3d 1, 6 (1st Cir.2002) (“[T]he preferred — and often the obligatory — practice is that a court, when confronted with a colorable challenge to its subject-matter jurisdiction, should resolve that question before weighing the merits of a pending action.”).

In reviewing the Motion to Dismiss, I must accept as true all allegations contained within the Complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir.1996) (internal citations omitted) (“In ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff. In addition, the court may consider whatever evidence has been submitted.... ”). Both the procedural history and factual background of this proceeding are pivotal to the resolution of the jurisdictional challenge raised by the Defendant.

II. PROCEDURAL AND FACTUAL BACKGROUND

A. The Mortgage Transaction

On July 24, 2007, the Defendant entered into a consumer credit transaction with the Plaintiff involving the Plaintiffs residence at 25 Cantara Street, West Warwick, [67]*67Rhode Island (the “Property”), advancing funds to the Plaintiff in the principal amount of $198,000 and securing such advances with a first mortgage against the Property (the “Mortgage Transaction”). See Objection, Exhibit B at 34. The Plaintiff alleges that at the time of the closing on the Mortgage Transaction she did not receive an accurate Truth-in-Lending Disclosure Statement as required by TILA and its implementing regulation, Regulation Z. More specifically, the Plaintiff asserts that in violation of the statutory and regulatory requirements certain charges were not listed as finance charges on the Disclosure Statement, the calculation of the annual percentage rate was inaccurate, and she did not receive two copies of the statutory “Notice of Right to Cancel.”

Within three years of the Mortgage Transaction, the Plaintiff sent a notice of rescission on June 19, 2010 (the “Notice of Rescission”) to BAC Home Loans, Servicing, LP (“BAC”), the entity servicing the loan on behalf of the Defendant. BAC received the Notice of Rescission on June 22, 2010, and the Plaintiff alleges that on June 30, 2010, the Defendant refused to accede to her request to rescind the Mortgage Transaction and discharge the mortgage.5

B. The Bankruptcy Case

On June 30, 2011, the Plaintiff filed a petition under Chapter 13 of the Bankruptcy Code.6 On the same day she also filed the Complaint against the Defendant. Less than one month later the Plaintiffs case converted to Chapter 7, and the Plaintiff subsequently filed her bankruptcy schedules. On “Schedule A — Real Property,” the Plaintiff listed an interest in the Property in fee simple with a value of $165,500, and a secured claim against the Property in the amount of $183,050.7 On “Schedule B — Personal Property,” the Plaintiff listed the TILA claims against the Defendant in an “unknown” amount. On “Schedule C — Property Claimed as Exempt,” the Plaintiff elected the state statutory exemptions, claimed a homestead exemption in the amount of “$0,” and claimed an exemption in the TILA claims in an “unknown” amount. No objections to these claimed exemptions were filed. On September 1, 2011, the Chapter 7 Trustee filed a “Report of No Distribution” (the “No-Asset Report”), and on November 2, 2011, the Plaintiff received her discharge. The bankruptcy case was closed but this adversary proceeding remained open pending its resolution.

C. The Adversary Proceeding

The Complaint contains three specific counts for relief: Count I to enforce the Plaintiffs right to rescind the Mortgage Transaction under 15 U.S.C. § 1635(a) and to recover actual damages under 15 U.S.C. § 1640(a); Count II to recover an amount equal to twice the finance charge and the actual damages incurred, as well as attorney’s fees and costs, pursuant to 15 U.S.C. [68]*68§ 1640(a); and Count III to disallow any proof of claim the Defendant might file.8

The Defendant filed the Motion to Dismiss on March 1, 2013,9

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Cite This Page — Counsel Stack

Bluebook (online)
507 B.R. 62, 2014 Bankr. LEXIS 1152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travers-v-bank-of-america-na-in-re-travers-rib-2014.