Jones v. Bank of America NA

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TYRONE JONES, )

)

Plaintiff, )

)

v. ) Case No.: 2:18-cv-0512-JEO

)

BANK OF AMERICA, N.A., et al., )

)

Defendants. )

)

MEMORANDUM OPINION

In this action, Plaintiff Tyrone Jones has alleged a variety of federal and

state law claims against Defendants Bank of America, N.A. and Carrington

Mortgage Services, LLC (“Carrington”). (Doc. 18). The claims are based on

allegations that Defendants falsely reported that Jones was in default on a

mortgage loan and wrongfully initiated foreclosure proceedings on his property,

among other things. (Id.). Defendants have moved for judgment on the pleadings.

(Doc. 29). For the reasons that follow, the court1 concludes that the motion is due

to be granted in part and denied in part.

1 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. 14).

I. PROCEDURAL HISTORY

Jones filed this action in the Circuit Court of Shelby 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 2-29). Defendants removed the action to this court

and then moved to dismiss all of the claims contained in the complaint, or, to the

extent any claims remained, moved for a more definite statement of those claims.

(Docs. 1, 4).

In response to the motion to dismiss, Jones filed a motion for leave to file an

amended complaint, noting the different pleading standards in federal and state

court. (Docs. 8, 9). The court granted Jones’s motion to file an amended

complaint, (doc. 10), and after two extensions, (docs. 11 & 16), Jones filed his

amended complaint on May 21, 2018.2 (Doc. 18). The amended complaint

contains a more detailed set of factual allegations and deleted three claims

(wrongful foreclosure, slander of title and fraud), but otherwise the differences

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

deemed moot. (Doc. 26).

between the two complaints are minimal. (Compare Doc. 1-1 at 2-29 with Doc.

18).

On July 9, 2018, Defendants filed an answer to the amended complaint.

(Doc. 24). Defendants then filed the instant motion for judgment on the pleadings,

reasserting most, if not all, of the same arguments presented in their original

motion to dismiss. (Doc. 29). 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(c) of the Federal

Rules of Civil Procedure. Under Federal Rule of Civil Procedure 12(c) “[a]fter the

pleadings are closed . . . any party may move for judgment on the pleadings.” Fed.

R. Civ. P. 12(c). “Judgment on the pleadings is appropriate where there are no

material facts in dispute and the moving party is entitled to judgment as a matter of

law.” Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)

(citation omitted). The standard for a motion for judgment on the pleadings is

identical to the standard applicable when a complaint fails to state a claim upon

which relief can be granted. See Fed. R. Civ. P. 12(b)(6); see also Paradise Divers,

Inc. v. Upmal, 402 F.3d 1087, 1089 (11th Cir. 2005).

Rule 12(b)(6) 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

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

Jones alleges that he bought property located at 128 Dallas Lane in

Montevallo, Alabama, financed the purchase with United Wholesale Mortgage,

and executed a mortgage with Mortgage Electronic Registration Systems, Inc.

(“MERS”), “acting solely as nominee for United Wholesale Mortgage.” (Doc. 18

¶ 5). The loan was later “assigned” to Bank of America and then to Carrington.

(Id. ¶ 8). More specifically, Jones seems to allege that MERS sold and/or assigned

the loan to Bank of America, and Bank of America also initially serviced the loan.

(Id. ¶ 7). Then Carrington became the servicer of the loan on July 11, 2017. (Id. ¶

7, 16). The amended complaint also alleges that at some time later, the loan was

assigned to Carrington. (Id. ¶ 8, 20). Jones “disputes the validity” of the

assignments, (id.), but provides no factual basis for this allegation and does not

attach a copy of any allegedly defective or invalid assignments to the amended

complaint or in opposition to judgment on the pleadings.

On July 22, 2015, Jones entered into a loan modification agreement with

Bank of America. (Id. ¶ 10). Jones signed all the paperwork and returned it to

Bank of America as instructed. (Id.). Then, in September 2015, Jones attempted

to make his payment under the loan modification, but Bank of America refused the

payment “because its computer system still had his account in a delinquent status.”

(Id. ¶ 11). Jones later called about the problem and Bank of America told him that

it had not implemented the loan modification package “because his wife filed for

chapter 13 Bankruptcy and she lived at the address.” (Id. ¶¶ 11, 12). Jones told

Bank of America that he had not filed for bankruptcy and his wife was not on the

mortgage loan account. (Id. ¶ 12). Nevertheless, Bank of America insisted that

Jones’ wife “give him a quitclaim deed divesting her of any interest in the

property, and that the Bankruptcy court approve the loan modification and confirm

that the wife had no interest in the property.” (Id.).

At some later time, Bank of America filed a motion with the bankruptcy

court “seeking an order from the court approving the loan modification agreement

and confirm[ing] that she had no interest in said property.” (Id. ¶ 13). The

bankruptcy court entered the order on April 26, 2016. (Id. ¶ 14). Bank of

America, however, “failed and refused to implement the loan modification that it

had agreed to do.” (Id.).

During that time period, from August 2015 until July 2017, Bank of

America refused to take payments from Jones, added unauthorized interest

charges, fees and expense to Jones’ mortgage debt. (Id. ¶ 15). Jones continued to

call and inquire about his loan modification, but did not get any answers from

Bank of America. (Id.).

On July 11, 2017, Bank of America “purportedly transferred servicing

right[s] as to the loan to Carrington.” (Id. ¶ 16). After Jones learned of the

transfer, he called Carrington to tell them about the loan modification and that it

had not been implemented. (Id.). Carrington “promised to look into it, but failed

to do so.” (Id.).

On October 1, 2017, Carrington initiated foreclosure proceedings on Jones’s

property “based on the erroneous and improper records which Bank of America

sent to Carrington.” (Id. ¶¶ 17, 18). Jones repeatedly called Carrington to explain

that he had been given a loan modification by Bank of America that had not been

implemented, but Carrington “refused to look into it any further, refused to

implement the loan modification agreement just as Bank of America had failed to

do, and pushed forward with the foreclosure on the property.” (Id. ¶ 17).

According to Jones, Carrington began foreclosure proceedings on his property

despite knowing that “he was not in default as his account was current at the time

of the acceleration because of the loan modification agreement.” (Id. ¶ 18).

The foreclosure sale was reported to the national credit bureaus, which

damaged Jones’s reputation and credit. (Id. ¶ 19). Additionally, the foreclosure

sale date was published in the newspaper in November and December 2017 and

January 2018, and included false information regarding his alleged default. (Id.).

On January 16, 2018, Jones sent a qualified written request (“QWR”)3 to

both Carrington and the attorney for Carrington. (Id. ¶ 73). The letter included a

statement for the reasons Jones believed there was an error regarding his mortgage

loan and included sufficient details for Carrington to respond. (Id.). Carrington

never acknowledged receipt of the QWR and never responded to it. (Id. ¶ 74).

As of the time Jones filed his amended complaint, he continued to reside in

the property. (Id. ¶ 5). It is unclear from the amended complaint whether a

foreclosure sale was ever scheduled.

IV. DISCUSSION

In his amended complaint, Jones states eleven counts - four federal

violations, six state law violations, and a count for declaratory judgment. (Doc. 18

at 8-26). The court first addresses the federal claims and then moves on to the state

law claims.

3 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).

A. The Federal Claims

In his amended complaint, Jones alleges that Carrington violated four federal

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

Seven); the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601

et seq. (Count Eight); the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681

et seq. (Count Nine); and the Fair Debt Collection Practices Act (“FDCPA”), 15

U.S.C. §§ 1692 et seq. (Count Ten). (Id. at 14-25). He also alleges that Bank of

America violated TILA and the FCRA. (Id. at 14-16, 18-20 (Counts Seven &

Nine)). Bank of America and Carrington have moved to dismiss all federal claims

alleged in the amended complaint. (Doc. 29).

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.

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 as a result of the failure and, with certain limitations, statutory damages.

15 U.S.C. § 1640(a).

In Count Seven of the amended complaint, Jones alleges that Bank of

America and Carrington violated both TILA and Regulation Z.4 (Doc. 18 ¶¶ 62-

71). Specifically, he alleges Defendants failed to provide required disclosures

“prior to consummation” of the 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. ¶

66). He also alleges Defendants made unauthorized charges in the form of

attorney fees and other fees not permitted by the mortgage contract, as well as

“improperly amortizing the loan.” (Id. ¶¶ 68, 70). Finally, he alleges Defendants

failed to send monthly statements. (Id. ¶ 70).

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

4 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).

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).

Jones’s factual allegations demonstrate that neither Defendant is, in fact, the

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

According to the amended complaint, Jones financed the purchase of the home

with United Wholesale Mortgage. (Doc. 18 ¶ 5). As such, neither Bank of

America or Carrington are a “creditor” within the meaning of TILA because

neither is the party to whom the loan was initially payable. Jones’s TILA claim

against Bank of America and Carrington is due to be dismissed.

2. RESPA

In Count Eight, Jones alleges that Carrington violated RESPA by “failing to

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

(Doc. 18 ¶ 72). 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).

Carrington argues that Jones’s RESPA claim should be dismissed because

he has not pleaded sufficient facts to establish that his QWR met the requirements

of § 2605(e)(1)(B). (Doc. 29 at 15-17). Although it is an extremely close

question, the court is satisfied that Jones adequately pleaded his RESPA claim and

that the claim should not be dismissed at this time.5 Jones alleges that he sent

QWRs to Carrington on January 16, 2018; that Carrington never responded to the

QWR; and that he was damaged by Carrington’s failure to provide him with the

requested information about his loan because, without the requested information,

he was unable to cure any alleged default or stop the foreclosure proceedings on

5 The court notes Jones’s opposition to the motion to dismiss completely misses the mark and

does not address the arguments made by Carrington. (Doc. 34 at 30-32). Plaintiff devotes his

entire argument to explaining why Bank of America should be held vicariously liable, but the

amended complaint does not assert a RESPA claim against Bank of America.

his own and had to retain and pay an attorney to stop the foreclosure. (Doc. 18 ¶¶

73-75). 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

ostensibly demonstrate “a right to relief above the speculative level.” Twombly,

550 U.S. at 545. Accordingly, Carrington’s motion to dismiss Jones’s RESPA

claim is due to be denied.

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

decisions of district courts within the Eleventh Circuit regarding Jones’s failure to

attach the purported QWRs to his amended complaint and failure to explain the

alleged errors referenced in the letter or how they related to the servicing of his

mortgage. (Doc. 29 at 15-16). While the court will not require Jones to supplement

his amended complaint with the alleged QWR, the court encourages Carrington to

file a motion for summary judgment as soon as practicable if it determines in

discovery that the QWR is deficient as a matter of law.

3. FCRA

In Count Nine, Jones seeks to hold Bank of America and Carrington liable

under the FCRA for allegedly reporting inaccurate information regarding his loan

to the national credit bureaus and failing to properly investigate his disputes. (Doc.

18 ¶¶ 76-86). “[T]he FCRA places distinct obligations on three types of entities:

consumer reporting agencies, users of consumer reports, and furnishers of

information to consumer reporting agencies.” Chipka v. Bank of Am., 355 F. App’x

380, 382 (11th Cir. 2009). It is apparent from Jones’s allegations that he is seeking

to hold Bank of America and Carrington liable as “furnishers” of information, and

in his opposition to Defendants’ motion to dismiss she confirms as much. (Doc. 34

at 32-34).

“The FCRA imposes two separate duties on furnishers. First, [15 U.S.C.] §

1681s-2(a) requires furnishers to submit accurate information to [credit reporting

agencies]. Second, § 1681s-2(b) requires furnishers to investigate and respond

promptly to notices of [consumer] disputes.” Green v. RBS Nat’l Bank, 288 F.

App’x 641, 642 (11th Cir. 2008). The FCRA provides a private right of action for

violations of § 1681s-2(b), and only when “the furnisher received notice of the

consumer’s dispute from a consumer reporting agency.” Peart v. Shippie, 345 F.

App’x 384, 386 (11th Cir. 2009).

The amended complaint alleges that “[i]n January 2017, February 2017, and

November 2017[,] each of the three credit reporting agencies notified the

Defendants of the pending dispute and sought investigation and inquiry related to

the Plaintiff[’]s dispute related to the information on their [sic] credit report

concerning their [sic] mortgage loan account.”6 (Doc. 18 ¶ 77). Bank of America

6 The court notes that it appears that much of this language was copied and pasted from another

document, like many other sentences that appear in the amended complaint, which refer to plural

and Carrington point out a number of problems with these allegations, including

the use of the generic “Defendants” and the inconsistencies with the dates and

when Carrington began servicing the loan. (Doc. 29 at 19). Additionally,

Defendants note that Plaintiff’s original complaint did not contain any factual

allegations that Defendants received notice of a dispute regarding Plaintiff’s loan

from a consumer reporting agency, but these specific allegations were added only

after that deficiency was highlighted by Defendants in their original motion to

dismiss. (Id. at 18). While the court acknowledges these issues with the

allegations, at this stage in the litigation, the court concludes that the allegations of

the amended complaint are minimally sufficient to state a cause of action against

both Defendants for a violation of the FCRA. The allegations are more than a

mere recitation of the elements and ostensibly demonstrate “a right to relief above

the speculative level.” Twombly, 550 U.S. at 545. As such, the motion for

judgment on the pleadings is due to be denied as to this claim.

4. FDCPA

Jones’s final federal claim against Carrington is for violations of the

FDCPA.7 Jones alleges that Carrington committed numerous FDCPA violations,

Plaintiffs, cite to different banking institutions, and reference incorrect dates. (See, e.g., doc. 18

¶¶ 6, 68, 77, 90).

7 Plaintiff’s opposition to the motion for judgment on the pleadings seems to indicate that the

claim is asserted against both Defendants. (Doc. 34 at 34-37). The court will not allow Plaintiff

to assert this claim against Bank of America. See Gilmour v. Gates, McDonald & Co., 382 F.3d

including, but not limited to: attempting to collect amounts not owed under his

mortgage contract; seeking unjustified amounts; threatening legal action that was

not permitted or not actually contemplated; revealing or discussing the nature of

the debt with third parties; failing to identify itself as a debt collector in its

communications; and falsely stating the amount of the debt. (Doc. 18 ¶ 90).

Carrington argues that Jones’s conclusory, vague and inconsistent allegations are

insufficient to plead an FDCPA claim.8 (Doc. 29 at 21-24). While the court agrees

with Carrington in some respects, the court ultimately concludes Jones has done

enough to state a claim under the FDCPA.

The amended complaint alleges that Carrington violated nearly a dozen

sections of the FDCPA. Most of these allegations, however, simply provide a

recitation of the FDCPA with no factual basis to support the claim. Paragraphs 90

and 93 of the amended complaint are perfect examples of such improper pleading.

In those paragraphs, Jones alleges that Carrington violated at least six sections of

the FDCPA (15 U.S.C. §§ 1692c, 1692e(2)(A), 1692e(8), 1692e(11), 1692f(1), and

1692g(b)), but the allegations are really only rote recitations of elements of the

1312, 1315 (11th Cir. 2004) (a plaintiff may not raise a new claim in response to a motion for

summary judgment).

8 Instead of responding to this argument, Plaintiff’s opposition brief discusses why Defendants

are debt collectors under the FDCPA. (Doc. 34 at 34-37). The motion for judgment on the

pleadings, however, does not address this issue or make any argument regarding whether or not

Carrington is a debt collector. (Doc. 29 at 19-22).

alleged violations without any specific factual allegations relating to those

elements. For instance, Jones alleges “Carrington falsely represented the character,

amount, or legal status of the debt in violation of 15 U.S.C. § 1692e(2)(A).” (Doc.

18 ¶ 93). The allegation does not specify which of the three actions Carrington

allegedly did and certainly does not “raise a right to relief above the speculative

level.” Iqbal, 556 U.S. at 555. As explained above, “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). As such, the allegations contained in these paragraphs do not state a

claim for a violation of the FDCPA.

Notwithstanding the above, and while not the model of draftsmanship,

paragraphs 98 through 100 provide a sufficient basis to state a claim under the

FDCPA. The allegations contained therein given enough detail to alert Carrington

as to the claims alleged by Jones. And while the court agrees with Carrington that

some of the allegations are internally inconsistent, (doc. 29 at 22), the other factual

allegations are minimally enough to withstand a motion for judgment on the

pleadings. The motion, therefore, is due to be denied regarding the alleged

FDCPA violations.

B. The State Law Claims

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

negligence (Count One), wantonness (Count Two), false light (Count Five), and

defamation/libel/slander (Count Six), along with claims for unjust enrichment

(Count Three) and breach of contract (Count Four). All the claims are brought

against Defendants Bank of America and Carrington. Defendants have moved for

judgment on the pleadings as to all the state law claims. (Doc. 29).

1. Negligence and Wantonness

In Counts One and Two of the amended complaint, Jones alleges Bank of

America and Carrington engaged in negligent and wanton conduct regarding the

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

insurance to be cancelled, negligently defaulted Jones, and attempted to complete a

foreclosure sale. (Doc. 18 ¶¶ 26, 29). Additionally, Jones claims Bank of America

and Carrington negligently and wantonly failed to prevent the dissemination of

inaccurate and libelous information to others, including the credit bureaus and

“credit grantors”. (Id.). Finally, Jones contends Bank of America and Carrington

negligently and wantonly trained and supervised the employees responsible for her

mortgage account. (Id.). 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. 29 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).

Jones’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 Jones 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 Jones contends Defendants breached is

based on contractual agreements, his negligence and wantonness claims are not

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”).

Although not mentioned by Defendants in their motion, Jones’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. 18 ¶¶ 26, 29). Regardless of this omission, and even assuming that

Jones might otherwise be able to assert a claim for negligent or wanton training or

supervision, he has not done so. 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). Jones

has not pleaded any acts regarding how Bank of America or Carrington employees

handled his loan, what training and supervision they received, or what notice either

Defendant had of their alleged incompetency. He has offered no facts from which

the court could even infer that he has a plausible claim against either Defendant for

failure to properly train and/or supervise their employees. Accordingly, Plaintiff’s

negligence and wantonness claims is due to be dismissed.9

2. Unjust Enrichment

Count Three of the amended complaint alleges Bank of America and

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

equity in Jones’s home. (Doc. 18 ¶ 34). Defendants argue that this claim “cannot

stand because there is an express written contract that governs the rights and

obligations between the parties.” (Doc. 29 at 6). Instead of addressing this

argument, Jones recites the elements of an unjust enrichment claim, reasserts his

allegations in the amended complaint, and argues that he has alleged sufficient

facts to overcome the motion to dismiss. (Doc. 34 at 18-19). The court is

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

“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).

9 The court rejects Plaintiff’s attempt to rescue his negligence and wantonness claims by arguing

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

Bank of America and Carrington.” (Doc. 34 at 14). 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.

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. 18 ¶ 5).

Because of the existence of a contract, Jones’s claim for unjust enrichment fails as

a matter of law. 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 v. JPMorgan Chase Bank NA, 2014 WL 3889472, at *11 (N.D. Ala.

Aug. 5, 2014).

Additionally, Jones has failed to specifically allege how Bank of America or

Carrington were enriched. Under Alabama law, “for a plaintiff to prevail on a

claim of unjust enrichment, the plaintiff must show that the defendant holds money

which, in equity and good conscience, belongs to the plaintiff or holds money

which was improperly paid to defendant because of mistake or fraud.” Federal

Home Loan Mortg. Corp. v. Anchrum, 2015 WL 2452775, at *5 (N.D. Ala. 2015).

There are a number of issues with the amended complaint. First, he contends that

“Bank of America refused to take payments. . . .” (Doc. 18 ¶ 15). Second, he has

not pled what fees he improperly was required to pay. Third, with regard to

maintenance of insurance, he has failed to allege that Defendants’ retention of

insurance proceeds were not used to maintain insurance. Therefore, this claim fails

as a matter of law for this alternative reason.

3. Breach of Contract

Count Four of the amended complaint alleges a breach of contract claim

against both Bank of America and Carrington. (Doc. 18 ¶¶ 38-44). “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). Bank of

America and Carrington only challenge the first element – whether there was a

contract binding the parties. (Doc. 29 at 8-9; Doc. 37 at 6-7). Nowhere in the

amended complaint does Plaintiff allege that either Bank of America or Carrington

were a party to the contract. Instead, Plaintiff alleges he entered into a contract

with his Lender. (Doc. 18 ¶¶ 5, 38, 41). That being said, Jones alleges the loan

was later “assigned” to Bank of America and then to Carrington. (Id. ¶¶ 7, 8,

16).10 Although by no means clear as to when or how this assignment occurred,

this allegation is minimally sufficient to allege the existence of a contract between

10 While the court acknowledges the amended complaint states that Bank of America and

Carrington were servicers of the loan, the amended complaint arguably alleges that at some point

in time (whether or not this pans out to be a reality in discovery is beyond the point), the contract

was sold to Bank of America. (Doc. 18 ¶ 7) (“Bank of America is purportedly the owner of the

loan.”). This is minimally enough at this stage in the litigation.

Plaintiff and Bank of America and Carrington, separate and apart from the

servicing agreement.11

Notwithstanding the above, to the extent Plaintiff’s claim for breach of

contract is based on allegations that Defendant failed to comply with “HUD rules

and regulations,” (doc. 18 ¶ 42), this claim fails as a matter of law. Alabama law

does not recognize a breach of contract claim based on failure to comply with the

regulations promulgated by HUD. See Adams v. Bank of America, N.A., 237 F.

Supp. 3d 1189, 1198-99 (N.D. Ala. 2017). Therefore, the motion is due to be

granted in part and denied in part with regard to the breach of contract claim. The

general breach of contract claim will remain, but the alleged breach of contract

regarding failure to comply with HUD is due to be dismissed.

4. False Light

In Count Five of the amended complaint, Jones claims that Bank of America

and Carrington made inaccurate reports “on the internet media and to his

homeowner insurance carrier.” (Doc. 18 ¶ 47). Defendants argue the claim fails

because it is not premised on communications “to the public at large” or “to so

many persons ‘that the matter must be regarded as substantially certain to become

11 The court acknowledges the inconsistencies in Jones’s allegations that the alleged assignment

was invalid, Jones is certainly permitted to argue in the alternative, should the court rule the

assignments valid. The court allows this same leeway with Defendants’ inconsistent arguments

that on one hand, there is no contract between Plaintiff and the Defendants, but on the other hand

that Plaintiff’s negligence, wantonness, and unjust enrichment claims fail because of the

existence of a contractual relationship between the parties.

one of public knowledge.’” (Doc. 29 at 11). Other than putting the words “False

Light” in the heading of a section, Plaintiff offers no specific argument in response

to Defendants’ arguments on this claim. (Doc. 34 at 26-27).

To establish a claim for false light, a plaintiff must show that the defendant

(1) “gave publicity to a matter” concerning the plaintiff, (2) placed the plaintiff in a

“false light” that would be highly offensive to a reasonable person, and (3) did so

with knowledge that the publicized matter was false or with reckless disregard to

its truth or falsity. Regions Bank v. Plott, 897 So. 2d 239, 244 (Ala. 2004) (quoting

Butler v. Town of Argo, 871 So. 2d 1, 12 (Ala. 2003)). “[G]iving publicity” is

“making a ‘matter . . . public, by communicating it to the public at large, or to so

many persons that the matter must be regarded as substantially certain to become

one of public knowledge.’” Plott, 897 So. 2d at 245. Publicity is “more difficult to

prove than [mere] publication,” and is not satisfied by the “‘communicat[ion of] a

fact . . . to a single person or even to a small group of persons.’” Id. at 245

(emphases omitted) (quoting Ex parte Birmingham News, Inc., 778 So. 2d 814, 818

(Ala. 2000)).

The amended complaint does not state any facts from which it could be

determined that Defendants “gave publicity” to the statements allegedly made by

them referring to Plaintiff to either the “internet media” or his insurance carrier.

There are no allegations as to what statements were made, how often they were

made, to whom they were made, or any other details from which it could be

inferred that such statements were either “highly offensive” or have become public

knowledge due to the actions of Defendants. The court joins the other district

courts in this circuit that have dismissed similar claims with similar allegations.

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). Accordingly,

Plaintiff’s claim for false light is due to be dismissed.

5. Defamation, Slander, and Libel

In Count Six of the amended complaint, Jones alleges that Defendants

published and communicated false and defamatory statements that he was in

default. (Doc. 18 ¶¶ 50-61). Specifically, Jones alleges that the foreclosure sale

notices in the Shelby County newspaper were defamatory and that Defendants

either knew they were false or recklessly disregarded their potential falsity. (Id. ¶¶

50, 52, 58). Jones pleads reputational damages from Defendants’ publication. (Id.

¶¶ 51, 58).

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, his claim is in reality one for libel,

not slander.12 To prove a communication was defamatory, a plaintiff must present

evidence establishing the following elements: (1) a false and defamatory statement

concerning the plaintiff; (2) an unprivileged communication of that statement to a

third party; (3) fault amounting to at least negligence on the part of the defendant;

and (4) either actionability of the statement irrespective of special harm or the

existence of special harm caused by the publication of the statement. McCaig v.

Talladega Pub. Co., Inc., 544 So. 2d 875, 877 (Ala. 1989) (citing Restatement (2d)

of Torts § 558 (1977)). As opposed to slanderous statements, libelous statements

are actionable per se, without a showing of special damages, “if they directly tend

to prejudice anyone in his office, profession, trade, or business, or in any lawful

employment by which he may gain his livelihood.” Kelly v. Arrington, 624 So. 2d

12 Although paragraph 56 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. 18 ¶¶ 50, 52, 58).

546, 549 (Ala. 1993). As a general matter, statements “charging nonpayment of

debts or insolvency are actionable without special damage being shown[ ] when

they refer to merchants, tradesmen, or others in occupations where credit is

essential.” Harrison v. Burger, 103 So. 842, 843-44 (Ala. 1925) (holding that

publications accusing the plaintiff of failing to pay a debt were not libel per se

because the plaintiff did not claim to engage in an occupation where credit was

essential); cf. Gen. Elec. Credit Corp. v. Alford & Assocs., Inc., 374 So. 2d 1316,

1319-20 (Ala. 1979) (concluding that publications to mobile home suppliers about

a plaintiff’s failures to meet financial obligations were libelous).

Defendants contend Jones’s claim fails because he has not pleaded any

different, special harm caused by the publication of the statements. (Doc. 29 at 12-

13). The court agrees. “Special damages are the material harms that are the

intended result or natural consequence of the [defamatory] statement . . . , and the

general rule is that they are limited to ‘material loss capable of being measured in

money,’ Restatement (2d) of Torts § 575, cmt. b, at 198.” Butler v. Town of Argo,

871 So. 2d 1, 18 (Ala. 2003) (internal citation omitted) (quoting Shook v. St. Bede

Sch., 74 F. Supp. 2d 1172, 1180 (M.D. Ala. 1999)). Plaintiff alleges that

Defendants published and communicated false and defamatory statements

regarding Plaintiff and that such communications “harmed the reputation of the

Jones and/or deterred third persons from associating with Jones.” (Doc. 18 ¶ 51).

With regard to damages, Plaintiff additionally states that he “was caused to suffer

injury to his reputation in the eyes of the community and the public and was

subject to ridicule,” “was caused to be injured and damaged,” and that the

allegedly defamatory statements “harmed Jones’s reputation and character” which

caused him to suffer “damages of his reputation which negatively affected his

credit and his business[13] causing monetary losses.” (Id. ¶¶ 55, 57, 58). Plaintiff

did not set forth any facts that the allegedly defamatory statements were actionable

irrespective of special harm or present facts showing he suffered special harm,

even after Defendants moved to dismiss this claim on those grounds. As a result,

Jones’s defamation claim is due to be dismissed.

C. Leave to Amend

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

Jones requests leave to amend his already amended complaint to correct any

deficiencies in all his claims, except her claims for defamation, libel, slander and

false light and her RESPA claim. (Doc. 34 at 18-19, 26, 30, 34, 37). The court

declines to allow leave to amend. Jones was placed on notice of the deficiencies to

his complaint with Defendants’ first motion to dismiss. (Doc. 4). He has had one

opportunity to correct the deficiencies and has failed to do so. In view of the

opportunity already afforded to Jones to amend his complaint, the allegations

13 Nowhere else in the amended complaint does Plaintiff allege that he owns a business and does

not explain how his business was damaged by any alleged false and defamatory statements.

contained in the amended complaint, and the foregoing legal determinations by the

court, there is no reason to believe Jones will be able to correct the deficiencies if

he is given a second bite at the apple.

CONCLUSION

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

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

enrichment, false light, defamation/libel/slander, and TILA, claims are due to be

dismissed; and Jones’s breach of contract and FCRA claims against both

Defendants and RESPA and FDCPA claims against Carrington will remain.

Additionally, Jones’s count for declaratory relief will remain. To the extent Jones

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 Ist day of July, 2019.

Soh

JOHN E. OTT

Chief United States Magistrate Judge

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