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David H. Parker, Jr., On Behalf of Himself and As A Class v. Bac Home

December 20, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff David H. Parker, Jr. brings this lawsuit, which he hopes to convert into a class action on behalf of similar customers, against Defendant BAC Home Loans Servicing. He claims that BAC unilaterally canceled a binding loan agreement with him, thereby causing him to incur financial penalties and face the threat of foreclosure. While the parties are engaged in discovery relating to class certification, Defendant has brought the instant Motion, seeking to dismiss three of the counts in the First Amended Complaint. Because the Court determines that BAC is not a "debt collector" within the meaning of the Fair Debt Collection Practices Act, it will grant the Motion as to Counts III and IV, but deny it as to Count II's claim of tortious interference with contract.


According to the First Amended Complaint, which must be presumed true for purposes of this Motion, Plaintiff refinanced his mortgage in 2006, borrowing money from GreenPoint Mortgage Funding, Inc. Id., ¶ 13. Facing financial difficulties, he sought to modify his loan and ultimately entered into a binding loan-modification agreement with Defendant BAC, "the loan servicer for the current noteholder." Id., ¶¶ 14-19. BAC is "a limited partnership and a distinct entity within the Bank of America corporate family that specializes in residential mortgage loan servicing." Id., ¶ 8. As a loan servicer, BAC "provid[es] financial services to the third-parties that own, or stand as agents or representatives for the owners of, the residential mortgage loans that are the subject of the allegations." Id., ¶ 9.

Under the loan-modification agreement, Plaintiff's new payments of $1,342.74 began in September 2009, and he made these loan payments on time and in full every month from September 2009 until November 2010. Id., ¶¶ 20-21. On August 2, 2010, Plaintiff received a Notice of Intent to Accelerate stating that his loan was "in serious default" and giving him the option to cure if he paid $23,431.94, which included late fees and penalties, by September 1, 2010. Id., ¶ 22. When Plaintiff contacted BAC to inquire about this Notice, BAC denied the existence of the loan-modification agreement. Id., ¶ 23. On August 27, 2010, BAC sent Plaintiff a letter that offered a new loan modification with monthly payments of $1,926.07 per month.

Id., ¶ 24. Plaintiff continued to make his mortgage payments until November 2010, when BAC returned his payment on the ground that his mortgage was considered to be delinquent. Id., ¶¶ 26, 28. BAC also wrote him that month to say it could not locate the 2009 loan-modifiction agreement. Id., ¶ 28. Thereafter, BAC stopped accepting Plaintiff's loan payments entirely, and it also stopped passing his payments to Plaintiff's lender. Id., ¶¶ 30-31. BAC also informed Plaintiff that it had referred his property to the foreclosure department on September 30, 2010. Id., ¶ 29.

In addition to breaching his loan-modification agreement, Plaintiff also contends that BAC engaged in improper debt-collection practices by making debt-collection calls to him, even after Plaintiff had sent BAC a formal cease-and-desist letter. Id., ¶¶ 34-36.

Not only does Plaintiff allege improper behavior relating to himself individually, but, in seeking to maintain a class action, Plaintiff makes allegations about BAC's loan-servicing operations generally. For example, Plaintiff asserts that BAC improperly tracks loans, unfairly treating certain borrowers placed on the unfavorable track. Id., ¶¶ 41-43. BAC then subjects these borrowers to "unlawful, harassing debt collection efforts." Id., ¶ 44. Other deficient practices include confusing program guidelines, including a failure to communicate program changes, that have resulted in inappropriate fees and penalties and the treatment of modified loans as in default. Id., ¶¶ 46-52. As a result, BAC "breached its contracts with borrowers whose loans were either formally modified or were within a formal trial period plan." Id., ¶ 51. Plaintiff avers that BAC, in its "pursuit of profits derived from fees earned through servicing agreements," accumulated a servicing portfolio it could not handle. Id., ¶ 53. Plaintiff also alleges that BAC evinced "willful blindness to systemic failures." Id., ¶¶ 53, 55. In April 2011, the Federal Reserve, Office of the Comptroller of the Currency, and Office of Thrift Supervision jointly issued a report explaining the deficiencies of the largest loan servicers, including BAC. Id., ¶ 55. Plaintiff contends that BAC did not seek to improve its servicing processes despite this report. Id., ¶ 57.

On February 8, 2011, Plaintiff brought suit against BAC in the Superior Court of the District of Columbia, following which BAC removed the action to this Court. In his First Amended Complaint, filed July 20, Plaintiff asserts four causes of action: breach of contract, tortious interference with contract, and two violations of the federal Fair Debt Collection Practices Act (FDCPA). Although the parties are engaging in discovery regarding class certification, BAC has now filed a Motion to Dismiss all but the first count of the First Amended Complaint.

II.Legal Standard

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.

A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the complaint, see FED. R. CIV. P. 12(d), which includes statements adopted by reference as well as copies of written instruments joined as exhibits. FED. R. CIV. P. 10(c).


As BAC has mounted challenges both to Plaintiff's tortious-interference claim and his FCDPA counts, the Court will address them in turn, ultimately finding for ...

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