Goodreau v. US Bank Trust National Association

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAN GOODREAU, )

)

Plaintiff, )

)

v. ) Case No.: 2:19-cv-0269-JEO

)

US BANK TRUST NATIONAL )

ASSOCIATION, et al., )

)

Defendants. )

MEMORANDUM OPINION

In this action, Plaintiff Jan Goodreau has alleged a variety of federal and

state law claims against Defendants US Bank National Association (“US Bank”),

as Trustee of the Igloo Series II Trust, and BSI Financial Services (“BSI”).1 (Doc.

23). The claims are based on allegations that Defendants falsely reported that

Goodreau was in default on a mortgage loan and wrongfully initiated foreclosure

proceedings on her property, among other things. (Id.). Defendants have moved to

dismiss all claims contained in the amended complaint except the alleged

violations of the Fair Credit Reporting Act and Fair Debt Collection Practices Act.

1 The amended complaint also names Mortgage Electronic Registration System, Inc. (“MERS”)

as a Defendant. (Doc. 23). The court dismissed MERS on May 1, 2019. (See Docs. 34-35).

(Doc. 31 at 2). For the reasons that follow, the court2 concludes that the motion is

due to be granted in part and denied in part.

I. PROCEDURAL HISTORY

Goodreau filed this action in the Circuit Court of Jefferson County,

Alabama, asserting fourteen separate claims against Defendants: negligence,

wantonness, unjust enrichment, wrongful foreclosure, slander of title, breach of

contract, fraud, false light, defamation/libel/slander, violation of the Truth in

Lending Act, violation of the Real Estate Settlement Procedures Act, violation of

the Fair Credit Reporting Act, violation of the Fair Debt Collection Practices Act,

and a claim for declaratory relief. (Doc. 1-1 at 3-22). Defendants removed the

action to this court and then moved to dismiss the claims contained in the

complaint. (Docs. 1, 6, 8).

In response to the motion to dismiss, Goodreau filed a motion for leave to

file an amended complaint, noting the different pleading standards in federal and

state court. (Doc. 15, 16). The court granted Goodreau’s motion to file an

amended complaint, (doc. 17), and, after an extension, Goodreau filed her

2 The action was originally assigned to the undersigned United States Magistrate Judge pursuant

to 28 U.S.C. § 636(b) and the court’s general order of reference dated January 2, 2015. The

parties have since consented to an exercise of plenary jurisdiction by a magistrate judge pursuant

to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Doc. 18).

amended complaint on March 31, 2019.3 (Doc. 23). The amended complaint

contains a more detailed set of factual allegations, removed the fraud claim, and set

out through the individual counts which Defendant is being sued for each specific

claim, but otherwise the differences between the two complaints are minimal.

(Compare Docs. 1-1 at 3-22 with Doc. 23). US Bank and BSI have moved to

dismiss all the claims in the amended complaint except the alleged violations of the

Fair Credit Reporting Act and Fair Debt Collection Practices Act. (Doc. 31). The

motion has been fully briefed and is now ripe for decision.

II. STANDARD OF REVIEW

Defendants have moved for dismissal pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, which authorizes the dismissal of all or some of

the claims in a complaint if the allegations fail to state a claim upon which relief

can be granted. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and

plain statement of the claim showing that the pleader is entitled to relief,” in order

to “give the defendant fair notice of what the ... claim is and the grounds upon

which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court assumes the

factual allegations in the complaint are true and gives the plaintiff the benefit of all

reasonable factual inferences. Hazewood v. Foundation Financial Group, LLC,

551 F.3d 1223, 1224 (11th Cir. 2008). However, “courts ‘are not bound to accept

3 In light of the filing of the amended complaint, Defendants’ original motion to dismiss was

deemed moot. (Doc. 17).

as true a legal conclusion couched as a factual allegation.’” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (“Rule 8 marks a

notable and generous departure from the hyper-technical, code-pleading regime of

a prior era, but it does not unlock the doors of discovery for a plaintiff armed with

nothing more than conclusions.”). Nor is it proper to assume that a plaintiff can

prove facts he has not alleged or that the defendants have violated the law in ways

that have not been alleged. Twombly, 550 U.S. at 563 n.8 (citing Associated Gen.

Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526 (1983)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, a plaintiff’s obligation to provide the grounds of

his entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Id., 550 U.S. at 555

(citations, brackets, and internal quotation marks omitted). “Factual allegations

must be enough to raise a right to relief above the speculative level. . . .” Id. Thus,

“a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face,’” i.e., its “factual content ... allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678 (citations omitted).

III. STATEMENT OF FACTS

Goodreau alleges that she bought property located at 4133 Alston Lane in

Birmingham, Alabama, financed the purchase with SouthTrust Mortgage

Corporation, and executed a mortgage with MERS, “acting solely as nominee for

SouthTrust Mortgage Corporation,” on December 1, 2004. (Doc. 23 ¶ 5). The

loan was later “sold and transferred” and/or assigned to both US Bank and BSI.

(Id. ¶¶ 7, 10). Although the allegations of the amended complaint are anything but

clear, from what the court can glean from the allegations, Goodreau seems to

allege that MERS sold and transferred and/or assigned the loan to “the Trust

maintained by US Bank” and BSI serviced the loan. (Id. ¶¶ 7, 9). Then, at some

other point in time, the loan was transferred to BSI and BSI remained the servicer

of the loan. (Id.). Goodreau “disputes the validity” of the transfers and/or

assignments, (id. ¶¶ 7, 10, 15, 17), but provides no factual basis for this allegation

and does not attach a copy of any allegedly defective or invalid transfers, sales or

assignments to the amended complaint.

On September 1, 2018, US Bank and BSI initiated foreclosure proceedings

on Goodreau’s property. (Id. ¶¶ 11, 13, 23, 24). The foreclosure sale was reported

to the national credit bureaus, which damaged Goodreau’s credit and reputation.

(Id. ¶¶ 14, 20, 25). Additionally, the foreclosure sale date was published in the

Alabama Messenger in September, October, November, December 2018 and

January and February 2019, and included false information regarding her alleged

default. (Id. ¶ 25).

According to Goodreau, she was not in default on her loan and Defendants

knew she was not in default at the time they began foreclosure proceedings. (Id. ¶¶

13, 16, 24). She alleges that she was not behind on her payments and that the note

was improperly accelerated. (Id. ¶¶ 16, 26). Despite this knowledge, “Defendants

set foreclosure sales for October 30, 2018, January 8, 2019, and February 8, 2019,”

but they were cancelled. (Id. ¶ 11).

Goodreau alleges that prior to April 2018, Defendants4 accepted and cashed

her monthly payments, but did not properly apply them to her account “pursuant to

paragraph 2 of the mortgage contract.” (Id. ¶¶ 21, 22). When she sent her monthly

payment to Defendants in October, November and December 2018, Defendants

refused the payment and returned it to her without explanation. (Id. ¶ 21). When

Goodreau called and asked about the returned payments, Defendants told her she

was in default for failure to make payments without any further explanation. (Id.).

Defendants told Goodreau they would not accept any further payments and her

account was being turned over for foreclosure. (Id.).

4 The amended complaint does not identify to which Defendant Goodreau sent these monthly

payments or which Defendant she called regarding the returned payments. Instead, the amended

complaint uses the generic “Defendants” throughout these allegations.

On October 26, 2018 and December 13, 2018, Goodreau sent a qualified

written request (“QWR”)5 to both BSI and the attorney for BSI. (Id. ¶ 99). The

letter included a statement for the reasons Goodreau believed there was an error

regarding her mortgage loan and included sufficient details for BSI to respond.

(Id.). BSI never acknowledged receipt of either QWR and never responded to

them. (Id. ¶ 100).

“[W]hile this action was pending, the Defendants improperly and illegally

foreclosed on Goodreau’s property on March 1, 2019.” (Id. ¶ 11). Goodreau,

however, alleges that she and her husband currently reside in the property at issue.

(Id. ¶ 6).

IV. DISCUSSION

In her amended complaint, Goodreau states four federal violations, eight

state law violations, and a count for declaratory judgment.6 (Doc. 23 at 8-33). The

court begins with the alleged federal violations and then moves to the state law

claims.

5 A QWR is written correspondence to the servicer that “(i) includes, or otherwise enables the

servicer to identify, the name and account of the borrower; and (ii) includes a statement of the

reasons for the belief of the borrower, to the extent applicable, that the account is in error or

provides sufficient detail to the servicer regarding other information sought by the borrower.” 12

U.S.C. § 2605(e)(1)(B).

6 Goodreau divides many of her state law claims against Defendants into separate claims.

A. The Federal Claims

In her amended complaint, Goodreau alleges that BSI violated four federal

statutes: the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq. (Count

Fourteen); the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§

2601 et seq. (Count Fifteen); the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.

§§ 1681 et seq. (Count Sixteen); and the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. §§ 1692 et seq. (Count Seventeen). (Doc. 23 at 23-33).

BSI has moved to dismiss Counts Fourteen and Fifteen.7 (Doc. 31 at 2, 17-20).

1. TILA

TILA is a remedial consumer protection statute designed to “assure a

meaningful disclosure of credit terms so that the consumer will be able to compare

more readily the various credit terms available to him and avoid the uninformed

use of credit, and to protect the consumer against inaccurate and unfair credit

billing and credit card practices.” 15 U.S.C. § 1601(a); see Beach v. Ocwen Fed.

7 The court has serious questions as to whether the amended complaint states a claim under the

FCRA and the FDCPA. (Doc. 23 at 26-33 (Counts 16 & 17)). See Gregory v. Select Portfolio

Servicing, Inc. et al., 2016 WL 4540891, *18 (N.D. Ala. Aug. 31, 2016) (dismissing the

plaintiff’s FCRA claim where the plaintiff failed to plead any facts to suggest that the credit

bureaus contacted the furnisher regarding the dispute); Bush v. v. J.P. Morgan Chase Bank, N.A.,

et al., 2016 WL 324993 (N.D. Ala. Jan. 27, 2016) (same); Rice v. JP Morgan Chase Bank N.A.,

2014 WL 3889472, *6 (N.D. Ala. Aug. 5, 2014) (same); see also Prickett v. BAC Home Loans,

946 F. Supp. 2d 1236, 1249 (N.D. Ala. 2013) (“Because the Complaint fails to allege facts

showing the BANA is a debt collector within the meaning of the FDCPA, Plaintiffs’ claim for

violation of the FDCPA is subject to dismissal.”). However, because BSI did not move to

dismiss these claims, the court will not address them.

Bank, 523 U.S. 410, 412 (1998). TILA requires creditors to provide consumers

with “clear and accurate disclosures of terms dealing with things like finance

charges, annual percentage rates of interest, and the borrower's rights.” Id. at 412.

TILA provides a private right of action against “any creditor” who violates the

requirements of the statute’s credit transactions section and allows for actual

damages because of the failure and, with certain limitations, statutory damages. 15

U.S.C. § 1640(a).

In Count Fourteen of the amended complaint, Goodreau alleges that BSI

violated both TILA and Regulation Z.8 (Doc. 23 ¶¶ 90-97). Specifically, she

alleges that BSI failed to provide required disclosures “prior to consummation” of

her loan transaction, failed to make required disclosures “clearly and

conspicuously in writing,” and failed to “include in the finance charge certain

charges imposed . . . [and] payable by plaintiff incident to the extension of credit . .

., thus improperly disclosing the finance charge.” (Id. ¶ 93). She also alleges BSI

made unauthorized charges in the form of attorney fees and other fees not

authorized by the mortgage contract, as well as “improperly amortizing the loan.”

(Id. ¶¶ 94, 96). Finally, she contends BSI failed to send proper monthly

statements. (Id. ¶ 96).

8 Regulation Z, 12 C.F.R. §§ 226.1 et seq., consists of various rules promulgated by the Federal

Reserve Board to further the purposes of TILA. Hendley v. Cameron-Brown Co., 840 F.2d 831,

833 (11th Cir. 2000).

As stated above, by its plain language, TILA’s private right of action applies

only to actions against “creditors.” 15 U.S.C. § 1604(a). A “creditor” is defined

as:

a person who both (1) regularly extends, whether in connection with

loans, sales of property or services, or otherwise, consumer credit

which is payable by agreement in more than four installments or for

which the payment of a finance charge is or may be required, and (2)

is the person to whom the debt arising from the consumer credit

transaction is initially payable on the face of the evidence. . . .

15 U.S.C. § 1602(g). The civil liability provision of TILA does not apply

generally to every person the statute regulates, but only to originating creditors.

Gregory v. Select Portfolio Servicing, Inc., 2016 WL 4540891, at *14 (N.D. Ala.

Aug. 31, 2016).

Goodreau’s factual allegations demonstrate that BSI is not, in fact, the

person to whom the debt arising from the loan transaction was initially payable.

According to her amended complaint, Goodreau financed the purchase of the home

with SouthTrust Mortgage. (Doc. 23 ¶ 5). As such, BSI is not a “creditor” within

the meaning of TILA because it is not the party to whom the loan was initially

payable. Goodreau’s TILA claim against BSI is due to be dismissed.

Additionally, even if the court is incorrect in its conclusion that BSI is a

“creditor” within the meaning of TILA, the claim is time-barred. TILA provides

for a one-year statute of limitations that begins to run from the date that the

borrower entered into the loan transaction. 15 U.S.C. § 1640(e); In re Smith, 737

F.2d 1549, 1552 (11th Cir. 1984). The loan here was signed on December 1, 2004,

more than thirteen years before the complaint was filed, well outside the

limitations period. Goodreau’s TILA claim against BSI is due to be dismissed for

this separate, additional reason.

2. RESPA

In Count Fifteen, Goodreau alleges that BSI violated RESPA by “failing to

acknowledge or properly respond to [her] Qualified Written Request (QWR).”

(Doc. 23 ¶ 98). RESPA establishes the procedures a loan servicer must follow, and

certain actions it must take, upon receiving a QWR from a borrower. 12 U.S.C. §

2605(e). Section 2605(e) of the RESPA requires a loan servicer to send a written

acknowledgement of the borrower’s QWR within five days and a written response

to the QWR within thirty days. 12 U.S.C. § 2605 (e)(1)(A), (e)(2). Failure to

adequately respond to a QWR results in liability “to the borrower for each such

failure in . . . an amount equal to the sum of any actual damages to the borrower as

a result of the failure. . . .” 12 U.S.C. § 2605(f)(1)(A). To succeed on a claim

under § 2605(e), Plaintiff “must show: (1) that Defendant is a servicer; (2) that

Defendant received a QWR from the borrower; (3) that the QWR related to the

servicing of the loan; (4) that Defendant failed to respond adequately; and (5) that

Plaintiff[ is] entitled to actual or statutory damages.” Buckentin v. SunTrust Mortg.

Corp., 928 F. Supp. 2d 1273, 1292 (N.D. Ala. 2013).

BSI argues that Goodreau’s RESPA claim should be dismissed because she

has not pleaded sufficient facts to establish that her QWR met the requirements of

§ 2605(e)(1)(B). (Doc. 31 at 18-24). Although it is an extremely close question,

the court is satisfied that Goodreau adequately pleaded her RESPA claim and that

the claim should not be dismissed at this time.9 Goodreau alleges that she sent

QWRs to BSI on October 26, 2018 and December 13, 2018; that BSI never

responded to the QWRs; and that she was damaged by BSI’s failure to provide her

with the requested information about her loan because, without the requested

information, she was unable to cure any alleged default or stop the foreclosure

proceedings on her own and had to retain and pay an attorney to stop the

foreclosure. (Doc. 23 ¶¶ 100-01). The court is satisfied that these allegations are

minimally sufficient to state a claim for violation of RESPA, that the claim is at

least plausible on its face, and provides BSI with fair notice of the basis for the

claim. Accordingly, BSI’s motion to dismiss Goodreau’s RESPA claim is due to

be denied.

That being said, the court acknowledges BSI’s argument and other decisions

of district courts within the Eleventh Circuit regarding Goodreau’s failure to attach

the purported QWRs to her amended complaint and failure to explain the alleged

9 The court notes Goodreau’s opposition to the motion to dismiss completely misses the mark

and does not address the arguments made by BSI. (Doc. 40 at 29-31). Plaintiff devotes her

entire argument to explaining why US Bank should be held vicariously liable, but the amended

complaint does not assert a RESPA claim against US Bank.

errors referenced in the letters or how they related to the servicing of her mortgage.

(Doc. 31 at 19-20). While the court will not require Goodreau to supplement her

amended complaint with the alleged QWRs, the court encourages BSI to file a

motion for summary judgment as soon as practicable if it determines in discovery

that the QWRs are deficient as a matter of law.

B. The State Law Claims

In her amended complaint, Goodreau also asserts state law tort claims based

on negligence (Counts One and Two), wantonness (Counts Three and Four),

wrongful foreclosure (Count Seven), slander of title (Count Eight), false light

(Counts Eleven and Twelve), and defamation/libel/slander (Count Thirteen), along

with state law claims for unjust enrichment (Counts Five and Six) and breach of

contract (Counts Nine and Ten). All the claims are brought against both

Defendants, except the claims for wrongful foreclosure, slander of title and

defamation/libel/slander are brought only against US Bank. Defendants have

moved to dismiss all the state law claims. (Doc. 31).

1. FCRA Preemption

Defendants argue that Goodreau’s negligence, wantonness, false light and

defamation/libel/slander claims, to the extent they are based on alleged inaccurate

credit reporting to credit agencies, are preempted by the FCRA. (Doc. 31 at 8-9,

16-17). Goodreau does not respond in any way to this argument in her opposition

brief. (See Doc. 40). Generally, a plaintiff’s failure to respond to a defendant’s

arguments is interpreted by courts as a decision to abandon those claims. See

Coal. for the Abolition of Marijuana Prohibition, 219 F.3d at 1326 (“failure to

brief and argue [an] issue during the proceedings before [a] district court is ground

for finding that the issue has been abandoned”); Kramer v. Gwinnett County, 306

F. Supp. 2d 1219, 1221 (N.D. Ga.) (“a party’s failure to respond to any portion or

claim in a motion indicates such portion, claim or defense is unopposed.”), aff’d,

116 F. App’x 253 (11th Cir. 2004) (table decision). That being said, Plaintiff does

address her state law claims on the merits, so the court does not deem them

completely abandoned notwithstanding the fact that Plaintiff failed to address the

preemption issue.

There are two potentially applicable FCRA preemption provisions, 15

U.S.C. §§ 1681h(e) and 1681t(b)(1)(F). Section 1681h(e) provides:

Except as provided in sections 1681n and 1681o of this title, no

consumer may bring any action or proceeding in the nature of

defamation, invasion of privacy, or negligence with respect to the

reporting of information against any consumer reporting agency, any

user of information, or any person who furnishes information to a

consumer reporting agency, based on information disclosed pursuant

to section 1681g, 1681h, or 1681m of this title, or based on

information disclosed by a user of a consumer report to or for a

consumer against whom the user has taken adverse action, based in

whole or in part on the report except as to false information furnished

with malice or willful intent to injure such consumer.

Section 1681t(b)(1)(F) provides:

No requirement or prohibition may be imposed under the laws of any

State . . . with respect to any subject matter regulated under . . .

section 1681s-2 of this title, relating to the responsibilities of persons

who furnish information to consumer reporting agencies . . . .

When dealing with a furnisher of credit information, these two provisions are

difficult to reconcile; Ҥ 1681t(b)(1)(F) is an absolute bar to state causes of action,

while § 1681h(e) only bars claims [where] the information was ‘furnished with

malice or willful intent to injure such consumer.’” Dial v. Midland Funding, LLC,

2015 WL 751690, at *6 (N.D. Ala. Feb. 23, 2015).

As United States District Judge Abdul K. Kallon observed, “FCRA

preemption of state law torts is an area of little agreement among this district’s

judges.” Hamilton v. Midland Funding, LLC, 2015 WL 5084234, at *6 (N.D. Ala.

Aug. 27, 2015); see Taylor v. Midland Funding, LLC, 2015 WL 4670314, at *9-

12(N.D. Ala. Aug. 6, 2015), and Dial, 2015 WL 751690 at *6-7, for overviews of

the various approaches to FCRA preemption taken by the judges in this district.

However, as this court noted in Bush v. JP Morgan Chase Bank, N.A., there

appears to be a growing consensus that tort claims based on a furnisher’s alleged

reporting of inaccurate credit information to credit agencies fall within the scope of

section 1681t(b)(1)(F), not section 1681h(e), and are preempted:

“The three [FCRA] sections covered by § 1681h(e)—1681g, 1681h,

and 1681m—regulate disclosures to consumers and duties of users of

information. These duties do not concern a furnisher’s duties of

reporting and investigation. Section 1681t(b) covers furnishers.”

Schlueter v. BellSouth Tellecomms., 770 F. Supp. 2d 1204, 1209 (N.D.

Ala. 2010). Section 1681t(b)(1)(F) preempts “the laws of any state”

with respect to any subject matter regulated under § 1681s-2, and §

1681s-2, in turn, imposes duties on furnishers to provide accurate

credit information to credit agencies, to investigate credit disputes

after notification, and to correct inaccurate information. See § 1681s-

2(a) and (b). Consequently, the court agrees with the growing trend

finding that §1681t(b)(1)(F) bars state law tort claims based on

inaccurate credit reporting by furnishers. See Schlueter, 770 F. Supp.

2d at 1210- 11 (finding that § 1681t(b)(1)(F) barred the plaintiffs’

state law claims against BellSouth, including their claims for

negligent, reckless, and wanton conduct and misrepresentation, where

the claims arose out of BellSouth’s furnishing of information to credit

reporting agencies); Hamilton, 2015 WL 5084234, at *7 (finding that

§ 1681t(a)(1)(F) barred the plaintiff’s invasion of privacy claim based

on the defendant’s credit reporting.”); Taylor, 2015 WL 4670314, at

*13 (same); Ferrell v. Midland Funding, LLC, 2015 WL 2450615, at

*6 (N.D. Ala. May 22, 2015) (same); Dial, 2015 WL 751690, at *7

(same); Williams v. Student Loan Guarantee Found. of Arkansas,

2015 WL 241428, at *13 (N.D. Ala. Jan. 20, 2015) (Ҥ 1681t(b)(1)(F)

preempts Williams’s state-law claims to the extent they address the

subject matter regulated under § 1681-s2.”); Barnett v. JP Morgan

Chase Bank, Nat. Ass’n, 2013 WL 3242739, at *13 (N.D. Ala. June

26, 2013) (holding that § 1681t(b)(1)(F) preempted the plaintiff from

pursuing defamation, libel, or slander claims against Chase arising out

of any false reports to credit agencies).

2016 WL 324993, at * 7 (emphasis in original).

Here, Goodreau’s negligence and wantonness claims are based, at least in

part, on the allegation that US Bank and BSI failed to ensure that the credit

information they disseminated to the national credit bureaus rose to the level of

maximum accuracy and was not false, libelous, or slanderous. (Doc. 23 ¶¶ 28, 31,

34, 39). The claims are also based on allegations that US Bank and BSI failed to

properly train their employees on the thorough investigation of disputed accounts

and failed to remove their adverse reporting once she disputed it. (Id.).

Goodreau’s false light claim is based, in part, on the alleged “offensive, untrue and

inaccurate reports” to the national reporting media. (Id. ¶¶ 72-73). Finally, while

the majority of her defamation/libel/slander claim is based on the information

contained in the publication of the foreclosure sale, a broad reading of the

allegations also includes a claim based on reporting to credit agencies. (Id. ¶¶ 79).

As such, the court concludes that these state law claims are based, at least in part,

on US Bank and BSI’s alleged failure to fulfill its duties under 15 U.S.C. § 1681s-

2. To the extent that Goodreau’s negligence, wantonness, fraud, false light,

libel/slander/defamation claims are based on such allegations, those claims are

preempted by the FCRA. See 15 U.S.C. § 1681t(b)(1)(F). To the extent that they

are not preempted, the court addresses Goodreau’s state law claims below.

2. Negligence and Wantonness

In Counts One through Four of the amended complaint, Goodreau alleges

US Bank and BSI engaged in negligent and wanton conduct regarding the

servicing of her loan, attempted to collect funds not owed, caused her property

insurance to be cancelled, negligently defaulted Goodreau, and attempted to

complete a foreclosure sale. (Doc. 23 ¶¶ 28, 31, 34, 39). Additionally, Goodreau

claims US Bank and BSI negligently and wantonly failed to prevent the

dissemination of inaccurate and libelous information to others, including the credit

bureaus and the general public. (Id.). Finally, Goodreau contends US Bank and

BSI negligently and wantonly trained and supervised the employees responsible

for her mortgage account. (Id.). In addition to the preemption argument,

Defendants contend these claims fail as a matter of law because Alabama law does

not recognize a cause of action for negligent or wanton servicing of a mortgage

account. (Doc. 26 at 5-6). The court agrees.

“To establish negligence, [a] plaintiff must prove: (1) a duty to a

foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4)

damage or injury.” Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994) (quoting

Albert v. Hsu, 602 So. 2d 895, 897 (Ala. 1992)). “To establish wantonness, [a]

plaintiff must prove that the defendant, with reckless indifference to the

consequences, consciously and intentionally did some wrongful act or omitted

some known duty. To be actionable, that act or omission must proximately cause

the injury of which the plaintiff complains.” Id. Put another way, wantonness is

not just a higher level of negligence, but involves “the conscious doing of some act

or the omission of some duty while knowing of the existing conditions and being

conscious that, from doing or omitting to do an act, injury will likely or probably

result.” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007) (emphasis in original).

Goodreau’s claims for negligence and wantonness fail as a matter of law

because “Alabama law does not recognize a tort-like cause of action for the breach

of a duty created by contract.” Blake v. Bank of America, N.A., 845 F. Supp. 2d

1206, 1210-11 (M.D. Ala. 2012) (citations omitted). Any obligations Defendants

owed to Goodreau arose from the legal relationship created by the loan documents.

These obligations do not give rise to a duty of reasonable care generally owed to

members of the public. James v. Nationstar Mortg., LLC, 92 F. Supp. 3d 1190,

1200 (S.D. Ala. 2015). Because the duty Goodreau contends Defendants breached

is based on contractual agreements, her negligence and wantonness claims are not

legally cognizable under Alabama law. See U.S. Bank Nat’l Ass’n v. Shepherd,

202 So. 3d 302, 314-15 (Ala. 2015) (holding that wantonness claims for servicing

and handling mortgages are improper because the underlying duties are established

by contract); see also James, 92 F. Supp. 3d at 1198 (recognizing “a veritable

avalanche of recent (and apparently unanimous) federal precedent has found that

no cause of action for negligent or wanton servicing of a mortgage account exists

under Alabama law”).

Goodreau’s negligence and wantonness claims also include allegations that

Defendants failed to properly train and/or supervise its employees with regard to

the handling of her loan account. (Doc. 23 ¶¶ 28, 31, 34, 39). In a claim for

negligent or wanton training/supervision, “the master is held responsible for his

servant’s incompetency when notice or knowledge, either actual or presumed, of

such unfitness has been brought to him.” Thompson v. Havard, 235 So. 2d 853,

858 (Ala. 1970). Goodreau has not pleaded any acts regarding how US Bank or

BSI employees handled her loan, what training and supervision they received, or

what notice either Defendant had of their alleged incompetency. She has offered

no facts from which the court could even infer that she has a plausible claim

against either Defendant for failure to properly train and/or supervise their

employees. Accordingly, Defendants’ motion to dismiss Plaintiff’s negligence

and wantonness claims is due to be granted.10

3. Unjust Enrichment

Counts Five and Six of the amended complaint allege US Bank and BSI

were unjustly enriched by the payment of fees, insurance proceeds, and equity in

Goodreau’s home in connection with the foreclosure attempts and actual

foreclosure. (Doc. 23 ¶¶ 44, 47). Defendants argue the unjust enrichment claim

fails because a valid contract existed between the parties. (Doc. 31 at 11-12).

Instead of addressing this argument, Goodreau recites the elements of an unjust

enrichment claim and reasserts her allegations. (Doc. 40 at 20-21). The court is

unpersuaded by Goodreau’s argument as the law is so far in Defendants’ favor.

10 The court rejects Plaintiff’s attempt to rescue her negligence and wantonness claims by

arguing that “federal law and regulations impose a duty of affirmative care on the servicing

Defendant, BSI.” (Doc. 40 at 17). Similar arguments have been soundly rejected. James v.

Nationstar Mortg., LLC, 92 F. Supp. 3d 1190, 1200 n.9 (S.D. Ala. 2015); Bush, 2016 WL

324993 at * 9.

“The doctrine of unjust enrichment is an old equitable remedy permitting the

court in equity and good conscience to disallow one to be unjustly enriched at the

expense of another.” Flying J Fish Farm v. Peoples Bank of Greensboro, 12 So.

3d 1185, 1193 (Ala. 2008) (emphasis and internal quotation marks omitted).

However, “the existence of an express contract extinguishe[s] an unjust enrichment

claim altogether because unjust enrichment is an equitable remedy which issues

only where there is no adequate remedy at law.” Univalor Trust, SA v. Columbia

Petroleum, LLC, 315 F.R.D. 374, 382 (S.D. Ala. 2016). Here, the amended

complaint clearly alleges a written contract between the parties. (Doc. 23 ¶ 5).

Because of the existence of a contract, Goodreau’s claim for unjust enrichment is

due to be dismissed. See Prickett v. BAC Home Loan, 946 F. Supp. 2d 1236, 1248

(N.D. Ala. 2013); Bias v. Cenlar Agency, Inc., 2018 WL 2365428, at *4 (N.D. Ala.

2018); Rice, 2014 WL 3889472, at *11.

4. Wrongful Foreclosure

In Count Seven, Goodreau alleges US Bank “wrongfully initiated and

attempted to conduct a foreclosure proceeding against” her. (Doc. 23 ¶ 50).

“Alabama has long recognized a cause of action for ‘wrongful foreclosure’ arising

out of the exercise of a power-of-sale provision in a mortgage.” Jackson v. Wells

Fargo Bank, N.A., 90 So. 3d 168, 171 (Ala. 2012) (defining a wrongful-foreclosure

claim where “a mortgagee uses the power of sale given under a mortgage for a

purpose other than to secure the debt owed by the mortgagor”). “The touchstone of

such a claim is that the mortgagee must ‘use[ ] the power of sale.’” Selman v.

CitiMortgage, Inc., 2013 WL 838193, at *7 (S.D. Ala. Mar. 5, 2013) (quoting

Reeves Cedarhurst Development Corp. v. First Am. Fed. Sav. & Loan Ass’n, 607

So. 2d 180, 182 (Ala. 1992)). That being said, “it is the act of executing and

delivering a deed that ‘complete[s] the foreclosure.’” Ex parte GMAC Mortg.,

LLC, 176 So. 3d 845, 850 (Ala. 2013) (quoting Ritter v. Moseley, 148 So. 143, 147

(Ala. 1933)); see also Ex parte Lynn, 727 So.2d 90, 91 (Ala. 1999) (“[f]or an

effective sale of property, there must be an execution, and delivery, of a deed to the

property”). “[I]t is the execution and delivery of a deed by which the power of sale

ultimately is exercised or ‘executed’ and, in turn, the foreclosure of the

mortgagor’s rights actually occurs.” Ex parte GMAC Mortg., LLC, 176 So.3d at

851.

Here, Goodreau alleges that a foreclosure sale took place on March 1, 2019.

(Doc. 23 ¶¶ 11, 12, 23). Goodreau also alleges that she and her husband currently

reside at the property. (Id. ¶ 6). There are no allegations regarding whether the

execution and delivery of the deed have occurred. It would seem from the

combination of the two allegations cited above that such has not happened.

Regardless, the allegations in the amended complaint fail to state a claim for

wrongful foreclosure under Alabama law, and Count Seven is due to be dismissed.

5. Slander of Title

Count Eight of the amended complaint alleges slander of title against US

Bank. (Doc. 30 ¶¶ 53-54). The elements of slander of title under Alabama law

are:

(1) Ownership of the property by plaintiff; (2) falsity of the words

published; (3) malice of defendant in publishing the false statements;

(4) publication to some person other than the owner; (5) the

publication must be in disparagement of plaintiff's property or the title

thereof; and (6) that special damages were the proximate result of

such publication (setting them out in detail).

Folmar v. Empire Fire & Marine Ins. Co., 856 So. 2d 807, 809 (Ala. 2003)

(citations omitted). For purposes of such a slander claim, malice may be proven

with evidence that the defendant “intentionally disparaged the plaintiff’s title” or

“[‘]recklessly disparaged it without information sufficient to support a bona fide

belief’ in the veracity of the disparaging statement.” Roden v. Wright, 646 So. 2d

605, 611 (Ala. 1994) (internal modifications and emphases omitted) (quoting

Harrison v. Mitchell, 391 So. 2d 1038, 1041 (Ala. Civ. App. 1980)). To plead

special damages, a plaintiff must claim that the slanderous publication interrupted

or injured a “dealing of the plaintiff with his property” or that he or she incurred

expenses to remedy the injurious effect of the slander. Prickett, 946 F. Supp. 2d at

1244 (quoting Ebersole v. Fields, 62 So. 73, 75 (Ala. 1913)).

Goodreau alleges that “by conducting a foreclosure sale on the property and

in recording an invalid foreclosure deed,” US Bank has “caused a cloud to be

placed on the title of the property.” (Doc. 23 ¶ 53). She further contends that “as a

proximate cause of” US Bank’s slander of title, “she was caused to suffer injuries

and damages and claims all damages allowable under law.” (Id. ¶ 54). Defendant

contends Goodreau’s slander of title claim is deficient because she failed to allege

malice or special damages. (Doc. 31 at 14-15). The court agrees.

Alabama law requires a plaintiff to distinctly set out the special damages

suffered from the slander. Merchants Nat. Bank of Mobile v. Steiner, 404 So. 2d

14, 21 (Ala. 1981); Prickett, 946 F. Supp. 2d at 1244 (quoting Ebersole, 62 So. at

75). Plaintiff’s damages allegation in the amended complaint does not aver that she

suffered the types of damages described in Prickett. (Doc. 23 ¶ 54). Moreover,

Goodreau’s averment that the foreclosure sale notice “caused a cloud to be placed

on the title of the property,” (id. ¶ 53), is a general allegation of damages that

comes nowhere close to pleading the type of special damages required for a viable

slander of title action. See Bush, 2016 WL 324993, at *11 (dismissing a slander of

title claim with nearly identical “cloud of title” allegations). Because Goodreau’s

amended complaint fails to plausibly plead the elements of malice and special

damages, her claim for slander of title against US Bank fails as a matter of law and

is due to be dismissed.

6. Breach of Contract

Counts Nine and Ten of the amended complaint allege breach of contract

claims against US Bank and BSI. (Doc. 23 ¶¶ 55-). “The elements of a breach-of-

contract claim under Alabama law are (1) a valid contract binding the parties; (2)

the plaintiff’s performance under the contract; (3) the defendant’s nonperformance;

and (4) resulting damages.” Shaffer v. Regions Fin. Corp., 29 So. 3d 872, 880

(Ala. 2009) (internal quotations and citations omitted). Defendants challenge only

the first element – whether there was a contract binding the parties. (Doc. 31 at

15-16). Defendants contend that the amended complaint specifically alleges “there

was not a valid contract between the parties.” (Id. at 16). While the court agrees

with Defendants that Goodreau challenges the validity of the alleged

sale/transfer/assignment of the mortgage to both US Bank and BSI, (see doc. 23 ¶¶

7, 10, 15, 17), the amended complaint is also abundantly clear that Goodreau is

asserting alternative theories, (see id. at ns. 3, 6, 7, 8). And there are allegations in

the amended complaint asserting that the note and mortgage were

sold/transferred/assigned to both US Bank and Nationstar. (Id. ¶¶ 7, 9, 10).

Although by no means clear as to when or how this sale and/or transfer occurred,

the allegations are minimally sufficient to allege the existence of a contract

between Plaintiff and both Defendants. As such, the motion to dismiss the breach

of contract claims are due to be denied.

7. False Light

In Counts Eleven and Twelve of the amended complaint, Goodreau claims

that US Bank and BSI made inaccurate reports on “the internet and media and

newspaper and to her homeowner insurance carrier.” (Doc. 23 ¶¶ 69, 74).

Defendants argue only that these claims are preempted by the FCRA. (Doc. 31 at

16-17). The court has already stated that to the extent that the claim is premised on

reporting to credit agencies, they are preempted. However, the allegations

contained in the amended complaint clearly also address the furnishing of

information to other groups, specifically the internet, media, newspaper and

Goodreau’s homeowner insurance carrier. (Doc. 23 ¶¶ 69, 74). Defendants do not

address these allegations in their motion to dismiss. Because the court can only

address arguments presented to it and Defendants did not address the false light

allegations contained in the amended complaint, the motion to dismiss these claims

is due to be denied.11

11 The court has concerns as to whether the amended complaint states a claim for false light. See

Rice v. Seterus, Inc., 2018 WL 513345, at * 7-8 (N.D. Ala. Jan., 23, 2018) (dismissal of false

light claim premised on statements made to “the national media” and plaintiff’s homeowner’s

insurance carrier, in an action filed by Plaintiff’s counsel); Jackson v. Bank of Mellon, 2016 WL

4942085, at *10 (S.D. Ala. July 19, 2016) (recommending, in an action filed by Plaintiff’s

counsel, the dismissal of a similar false light claim premised on statements made to the “credit

reporting media” and an insurance carrier for failure to plead the publicity element), adopted,

2016 WL 4942012 (S.D. Ala. Sept. 15, 2016).

8. Defamation, Slander, and Libel

In Count Thirteen of the amended complaint, Goodreau alleges that US

Bank published and communicated false and defamatory statements that she was in

default. (Doc. 23 ¶¶ 77-89). Specifically, Goodreau alleges that the foreclosure

sale notices in the Alabama Reporter and on the internet were defamatory and that

US Bank either knew they were false or recklessly disregarded their potential

falsity. (Id. ¶¶ 77, 80, 82, 88). Goodreau pleads reputational damages from

Defendant’s publication. (Id. ¶¶ 83, 86, 89).

There are two types of defamation: libel, which involves the use of print

media to publish a defamatory comment; and slander, which involves the oral

expression of a defamatory comment. Blevins v. W.F. Barnes Corp., 768 So. 2d

386, 390 (Ala. Civ. App. 1999). Because Plaintiff’s claim is based on written

communications, the foreclosure sale notices, her claim is in reality one for libel,

not slander.12

Like the false light claims, Defendant argues only that the libel claim is due

to be dismissed because it is preempted by the FCRA. (Doc. 31 at 17). The court

has already stated that to the extent that the claim is premised on reporting to credit

agencies, they are preempted. However, the allegations contained in the amended

12 Although paragraph 84 of the amended complaint states the communications were oral and/or

written, the specific allegations relating to this claim only refer to written communications. (See

Doc. 23 ¶¶ 77, 80, 86).

complaint clearly also address the written communication to other third parties via

the Alabama Messenger and the internet. (Doc. 23 ¶¶ 77, 80). Again, US Bank

does not address these allegations in the motion to dismiss. Because the court can

only address arguments presented to it and Defendant did not address the libel

allegations contained in the amended complaint, the motion to dismiss these claims

is due to be denied.13

C. Leave to Amend

Throughout her response in opposition to Defendants’ motion to dismiss,

Goodreau requests leave to amend her already amended complaint to correct any

deficiencies in all her claims, except her claims for slander of title, defamation,

libel, slander and false light and her RESPA claim. (Doc. 40 at 20-22, 26, 29, 31).

The court declines to allow leave to amend. Goodreau was placed on notice of the

deficiencies to her complaint with Defendants’ first motion to dismiss. (Doc. 8).

She has had one opportunity to correct the deficiencies and has failed to do so. In

view of the opportunity already afforded to Goodreau to amend her complaint, the

allegations contained in the amended complaint, and the foregoing legal

determinations by the court, there is no reason to believe Goodreau will be able to

correct the deficiencies if she is given a second bite at the apple.

13 Again, the court has concerns as to whether the amended complaint adequately states a claim

for libel. See Jackson v. Bank of New York Mellon, 2016 WL 4942085 (S.D. Ala. July 19, 2016)

(dismissal of similar claim for failure to plead special harm caused by the publication).

V. CONCLUSION

Based on the foregoing, Defendants’ motion to dismiss is due to be granted

in part and denied in part as follows: Goodreau’s negligence, wantonness, unjust

enrichment, wrongful foreclosure, slander of title, and TILA claims are due to be

dismissed; Goodreau’s breach of contract, false light, libel, and RESPA claims

remain. '* Additionally, Goodreau’s count for declaratory relief will remain. To the

extent Goodreau requests permission to file a second amended complaint, the

request is due to be denied.'” An order consistent with this memorandum opinion

will be entered.

DATED this 25th day of June, 2019.

oh) E.G

JOHN E. OTT

Chief United States Magistrate Judge

The FCRA and FDCPA claims remain as well since Defendants did not move for dismissal of

those claims.

'S As this court has previously warned counsel for Plaintiff, Plaintiffs amended complaint comes

close to running afoul of the confines of Rule 11, particularly in light of the rulings of the

Eleventh Circuit and rulings of this court regarding other complaints filed by counsel for

Plaintiff, that are strikingly similar, if not verbatim in some places. See, e.g., Perry v. Matrix

Fin. Servs. Corp., 2019 WL 1597883 (N.D. Ala. April 15, 2019); Bias v. Cenlar Agency, Inc.,

2018 WL 2365428, (N.D. Ala. May 24, 2018), Rice, 2018 WL 513345 (N.D. Ala. Jan. 23, 2018);

Gregory., 2016 WL 4540891 (N.D. Ala. Aug. 31, 2016); Zanaty. Wells Fargo Bank, N.A., et al.,

2016 WL 6610443 (N.D. Ala. Nov. 9, 2016); Bush., 2016 WL 324993 (N.D. Ala. Jan. 27, 2016).

Counsel for Plaintiff should take note of the repeated rejection as a matter of law of certain

claims by the courts in this district. It is a waste of judicial resources to continually analyze and

reject these claims, not to mention needlessly expensive for the defendants to file lengthy

motions to dismiss claims that have been repeatedly rejected.

29