Opinion

Barbe v. Ocwen Loan Servicing, LLC

Court
District Court, E.D. Louisiana
Filed
Jul 25, 2019
Cited by
0 cases
Authority
More cited than 22.2%

“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.”

How later courts described this case

  • “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.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARC G. BARBE CIVIL ACTION

v. NO. 18-14037

AMERICAN MODERN HOME

INSURANCE COMPANY SECTION “F”

ORDER AND REASONS

Before the Court is American Modern Home Insurance Company’s

motion to dismiss the plaintiff’s second amended complaint for

failure to state a claim. For the reasons that follow, the motion

is GRANTED.

Background

This lawsuit concerns allegations that a mortgage servicing

company and an insurance carrier conspired to issue a force-placed

insurance policy with inflated premiums and to withhold policy

proceeds.

Marc Barbe and his wife, Renada, are the mortgagors of a home

located in Metairie, Louisiana. Ocwen Loan Servicing, LLC services

their mortgage. Pursuant to the mortgage agreement, the Barbes

are required to insure the property, and if they fail to maintain

appropriate coverage, Ocwen is permitted to obtain insurance at

their expense. By letter dated December 31, 2015, Ocwen advised

Mr. Barbe that it had not received proof of coverage, as required

by the mortgage, and had therefore renewed a lender-placed policy

at his expense. Ocwen also encouraged Barbe to obtain his own

policy and warned about the cost of lender-placed coverage.

Finally, Ocwen attached to the letter a copy of the policy it had

obtained from American Modern Home Insurance Company, which named

Ocwen as the “insured” and the Barbes as “borrowers.”

On August 5, 2016, high velocity winds damaged the Barbes’

roof and exterior elevations, which allowed water to infiltrate

the home and damage the ceilings, walls, floors, and fixtures.

After assessing the damage, the Barbes notified American Modern

and filed a claim under the policy.

Displeased with the manner in which their claim was handled,

the Barbes sued American Modern Home Insurance Company and Ocwen

Loan Servicing, LLC in Louisiana state court on August 3, 2018.

Asserting various causes of action sounding in contract and tort,

the Barbes alleged that: (1) American Modern breached the insurance

policy and engaged in bad faith claims adjusting practices under

Louisiana law, (2) Ocwen breached the mortgage agreement by

overcharging for the insurance policy and by failing to help them

pursue insurance proceeds, and (3) American Modern and Ocwen

conspired to overcharge for the policy. After removing the lawsuit

to this Court, the defendants moved to dismiss the plaintiffs’

petition for failure to state a claim. On February 19, 2019, the

plaintiffs were granted leave to file an amended complaint, and

the defendants’ motions to dismiss were denied as moot.

In his first amended complaint1, Mr. Barbe asserted that he

is an insured or third-party beneficiary under the American Modern

policy, such that the insurer is liable to him for breaching the

terms of the policy and for engaging in bad faith claims adjusting

practices. With respect to Ocwen, Barbe alleged that his mortgage

servicer breached the mortgage agreement by overcharging for the

insurance policy and by failing to help him pursue policy proceeds.

Barbe also claimed that American Modern and Ocwen engaged in a

conspiracy, in which Ocwen would pass along an inflated premium to

the Barbes and receive “kickbacks” from American Modern. Finally,

he asserted an unjust enrichment claim against each defendant for

their role in the alleged kickback scheme.

Once again, the defendants moved to dismiss Mr. Barbe’s

amended complaint for failure to state a claim. On May 22, 2019,

the Court granted the motions to dismiss with prejudice, as to the

plaintiff’s unjust enrichment claims, and without prejudice, as to

his breach of contract and tort claims. Finding that the viability

of Mr. Barbe’s claims against American Modern hinge on his status

as a third-party beneficiary under the policy, the Court offered

the plaintiff “one final opportunity to amend his complaint to

1 Meanwhile, on April 23, 2019, plaintiff Renada Barbe voluntarily

dismissed her claims against both defendants with prejudice.

allege facts demonstrating that the value of his insurance claim

exceeds the current balance on his mortgage, if he can in good

faith do so.”

In his second amended complaint, the plaintiff reproduces his

first amended complaint nearly verbatim but removes allegations of

a civil conspiracy. Mr. Barbe also pleads two additional

allegations concerning the value of his interest in the property:

(1) as of July 2013, he owed $140,126.41 on the mortgage; and (2)

in a matter currently pending in state court, Ocwen alleges that

Barbe has breached the Loan Modification Agreement, but Barbe

“vigorously denies any obligation on the loan or mortgage to Ocwen

or any other party or entity.”

American Modern, the only defendant remaining in this action,2

now moves to dismiss the plaintiff’s second amended complaint.

I.

In considering a Rule 12(b)(6) motion, the Court “accept[s]

all well-pleaded facts as true and view[s] all facts in the light

most favorable to the plaintiff.” See Thompson v. City of Waco,

Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee

v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th

Cir. 2012) (en banc)). But in deciding whether dismissal is

2 On July 5, 2019, upon the joint motion of Mr. Barbe and Ocwen,

all claims asserted against Ocwen in the plaintiff’s second amended

complaint were dismissed without prejudice.

warranted, the Court will not accept conclusory allegations in the

complaint as true. Id. at 502-03 (citing Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)).

To survive dismissal, “‘a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603

(5th Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal

quotation marks omitted). “Factual allegations must be enough to

raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true (even

if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007) (citations and footnote omitted). “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.” Iqbal, 556 U.S.

at 678 (“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.”). This is a “context-specific

task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679. “Where a complaint

pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Id. at 678 (internal

quotations omitted) (citing Twombly, 550 U.S. at 557). “[A]

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’”, thus, “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” Twombly, 550 U.S. at 555 (alteration in

original) (citation omitted).

II.

“To state a claim under an insurance policy, the plaintiff

must be a named insured, an additional named insured, or an

intended third-party beneficiary of the policy.” Guthrie Brown v.

Am. Modern Home Ins. Co., No. 16-16289, 2017 U.S. Dist. LEXIS

80057, at *10-11 (E.D. La. May 25, 2017) (Lemmon, J.) (citing

Williams v. Certain Underwriters of Lloyd’s of London, 398 F. App’x

44, 47 (5th Cir. 2010)). Under Louisiana law, a contract for the

benefit of a third party is referred to a stipulation pour autrui.

See Joseph v. Hosp. Serv. Dist. No. 2 of the Parish of St. Mary,

939 So. 2d 1206, 1211 (La. 2006). The Louisiana Supreme Court has

articulated three criteria for determining whether a contract

stipulates a benefit for a third party: “1) the stipulation for a

third party is manifestly clear; 2) there is certainty as to the

benefit provided the third party; and 3) the benefit is not a mere

incident of the contract between the promisor and the promisee.”

Id. at 1212. The state high court has emphasized that a

“stipulation pour autrui is never presumed” and that “[t]he party

claiming the benefit bears the burden of proof.” Id.

In considering force-placed insurance policies nearly

identical to the one at issue here,3 other Sections of this Court

have held that a borrower whose insurance claim does not exceed

the value of the lender’s interest in the property does not qualify

as a third-party beneficiary under the policy. See Guthrie Brown,

2017 U.S. Dist. LEXIS 80057, at *14-17; Lee v. Safeco Ins. Co. of

Am., No. 08-1100, 2008 U.S. Dist. LEXIS 69817, *9-16 (E.D. La.

July 2, 2008). Notably, in Guthrie Brown v. American Modern Home

Insurance Co., another Section of this Court dismissed a breach of

contract claim against American Modern, without prejudice, where

the borrowers’ complaint contained “no information regarding the

amount of [the] insurance claim against American Modern or [the

borrowers’] mortgage balance.” 2017 U.S. Dist. LEXIS 80057, at

*14-16. In granting American Modern’s motion to dismiss, Judge

Lemmon reasoned:

Without allegations demonstrating that the condition

requiring American Modern to pay plaintiffs was

triggered, i.e., that the amount of the loss exceeds the

mortgage balance, plaintiffs’ complaint does not

sufficiently allege that there was a stipulation pour

autrui, and plaintiffs have not stated a claim against

American Modern for breaching the insurance contract.

3 The American Modern policy here designates Ocwen as the named

insured and refers to Ocwen as “you” and “your.” The “Loss

Payable” provision of the policy provides that any loss “shall be

made payable to you as your interest appears.” Paragraph AA(2) of

the policy, in turn, states: “If we pay you for any loss and do

not pay the mortgagor . . . .” When read together, these provisions

reveal that the policy contemplates payment of any benefits in

excess of Ocwen’s interest in the property to the Barbes.

Id. at *15-16. Ultimately, when the Guthrie Brown plaintiffs

failed to plead facts in their second amended complaint

demonstrating that the claimed property damage exceeded their

current mortgage balance, the court dismissed their third-party

beneficiary claim against American Modern with prejudice. Guthrie

Brown v. Am. Modern Home Ins. Co., No. 16-16289, 2017 U.S. Dist.

LEXIS 116842, at *4-6 (E.D. La. July 26, 2017).

Like the plaintiffs in Guthrie Brown, Mr. Barbe was granted

leave to amend his complaint (for a second time) to plead facts

that, if proved, would demonstrate that the value of the damage to

his home exceeds his current mortgage balance. Mr. Barbe filed

his second amended complaint on June 21, 2019.

III.

American Modern now moves, for a third time, to dismiss Mr.

Barbe’s breach of contract and bad faith insurance practices claims

for failure to state a claim. The defendant contends that Barbe’s

second amended complaint fails to comply with this Court’s May 22,

2019 Order and Reasons and continues to fall short of the Rule 8

pleading requirement. Once again, the Court agrees.

A.

With respect to third-party beneficiary status, Mr. Barbe

pleads the following allegations in his second amended complaint:

14. In this particular instance, Marc Barbe entered

into a Loan Modification Agreement with Ocwen on March

26, 2012. As part of the loan modification, and after

a “Trial Period” was completed, the amount owed on the

mortgage dropped to $149,150.00. By July of 2013, the

amount owed on the mortgage was $140,126.41.

15. The total insured damage to the Property is, at a

minimum $158,389.81. Barbe alleges that the amount of

damage actually exceeds this amount. In addition to

undercompensated damages from the initial loss, the

Property has suffered additional incidental damages

because of AMHIC’s refusal to adjust and pay this claim

in good faith.

16. As such, the amount of the loss to the Property

exceeds the mortgage balance.

17. Ocwen has subsequently alleged that Barbe breached

the terms and conditions of the Loan Modification

Agreement. However, that matter is currently in dispute

in Louisiana State Court, and Barbe vigorously denies

any obligation on the loan or mortgage to Ocwen or any

other party or entity.

In a nutshell, Mr. Barbe now alleges that, as of July 2013,

he owed $140,126.41 on his mortgage. The plaintiff also

acknowledges that Ocwen has initiated foreclosure proceedings in

state court but maintains that he “vigorously denies any obligation

on the loan or mortgage.”

B.

Accepting the complaint’s factual allegations as true, Mr.

Barbe’s mortgage balance as of July 2013 was $140,126.41, which

exceeds the value of damage to his home.4 But the complaint is

4 With respect to property damage, Mr. Barbe alleges that American

Modern’s initial estimate of $11,895.48 (ACV)/$12,360.56 (RCV) and

subsequent estimate of $7,303.08 (ACV)/$8,475.59 (RCV) were

“grossly inadequate,” in that “[a]dditional necessary repairs

would cost Plaintiff in excess of $139,191.25.”

devoid of any factual allegations concerning the mortgage balance

beyond July 2013. Although Mr. Barbe asserts that he now

“vigorously denies any obligation on the loan or mortgage,” he

fails to plead the current “disputed” balance or the factual

underpinnings for such dispute.

Without pleading the current balance on his mortgage or the

basis under which he “vigorously denies any obligation on the loan

or mortgage,” Mr. Barbe fails to raise a right to relief beyond

the speculative level. See Twombly, 550 U.S. at 555. The sparse

factual predicate alleged simply does not allow the Court to draw

the reasonable inference that Barbe’s current interest in the

property exceeds the value of the damage claimed under the American

Modern insurance policy. See Iqbal, 556 U.S. at 678.

Accordingly, IT IS ORDERED: that American Modern’s third

motion to dismiss is GRANTED. Because Mr. Barbe has been afforded

no less than two opportunities to remedy his pleading deficiencies,

his claims are hereby dismissed with prejudice.

New Orleans, Louisiana, July 25, 2019

\

MARTIN F □□ Ela

UNITED STATWS DISTRICT JUDGE

10

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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