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James P. Darlington, and Charlene J. v. Bank of America

April 30, 2013

JAMES P. DARLINGTON, AND CHARLENE J. DARLINGTON, PLAINTIFFS,
v.
BANK OF AMERICA, N.A.; BAC HOME LOANS SERVICING, LP; AND FEDERAL NATIONAL MORTGAGE ASSOCIATION, DEFENDANTS.



The opinion of the court was delivered by: Donovan W. Frank United States District Judge

MEMORANDUM OPINION AND ORDER

INTRODUCTION

This matter is before the Court on motions to dismiss brought by Defendant Federal National Mortgage Association (Doc. No. 5) and Defendant Bank of America, N.A., for itself and as successor by merger with BAC Home Loans Servicing, LP (Doc. No. 8). For the reasons set forth below, the Court grants Defendants' motions to dismiss.

BACKGROUND

Plaintiffs James P. Darlington and Charlene J. Darlington (together, "Plaintiffs") are loan borrowers who executed a note and mortgage with respect to their home in St. Cloud, Minnesota (the "Property"). (Doc. No. 1, Ex. 1, Compl. ¶ 1; Doc. No. 11, Ex. 1.) On January 13, 2005, Plaintiffs executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Bremer Bank, National Association. (Doc. No. 11, Ex. 1.) On October 27, 2010, the mortgage was assigned to BAC Home Loans Servicing, LP, which later merged with Bank of America, N.A. (together, "BOA"). (Doc. No. 11, Ex. 2; Compl. ¶ 4.)

Plaintiffs attempted to obtain a loan modification beginning in June 2010 with BOA. (Compl. ¶ 12.) According to the Complaint, BOA recommended that Plaintiffs pursue a loan modification instead of attempting to reinstate the loan, and told Mr. Darlington he would receive a loan modification packet within 10 days. (Id. ¶ 13.) When he did not receive the packet, Mr. Darlington requested another, which he received on June 28, 2011. (Id. ¶ 14.) Plaintiffs further allege that a BOA representative reassured Mr. Darlington that Plaintiffs could "use reinstatement as a last option if the loan modification did not work out." (Id. ¶ 15.)

Plaintiffs defaulted on the loan, and were served with the Notice of Mortgage Foreclosure Sale on December 20, 2011;*fn1 the sale was initially scheduled for February 9, 2012. (Compl., Ex. 1; Doc. No. 11, Ex. 3.) After receiving the notice, Mr. Darlington claims he phoned BOA sometime in January 2012 and asked for information about "the full amount owed and the past due amount for reinstatement." (Compl. ¶ 18.)

Also in January 2012, BOA allegedly informed Mr. Darlington that Plaintiffs did not qualify for any loan programs because their paperwork was not received on time. (Id. ¶ 16.) A supervisor then informed Mr. Darlington that BOA had misplaced the loan paperwork. (Id.) Plaintiffs claim that the supervisor also told Mr. Darlington that Plaintiffs' only option was to file an internal appeal to determine whether the paperwork had been provided in a timely manner. (Id.)

The foreclosure sale ultimately occurred on March 1, 2012, as evidenced by the Sheriff's Certificate of Sale. (Doc. No. 11, Ex. 3.) BOA purchased the Property for the sum of $326,748.11. (Id.)

On March 8, 2012,*fn2 Mr. Darlington called BOA again and offered to pay the past due sum in order to reinstate the loan. (Doc. No. 1, Darlington Aff. ¶ 10.) Plaintiffs claim that BOA refused to accept Plaintiffs' "tender of full payment ($48,259.46)." (Compl. ¶ 20.) On the same day, Mr. Darlington phoned BOA's foreclosure attorneys, who allegedly "also refused to accept Mr. Darlington's payment." (Id. ¶ 21.) Plaintiffs claim that "the law firm told Mr. Darlington that the only way payment could be made was by mailing to [BOA] and that it was too late to make a payment." (Id.)

On November 16, 2012, BOA conveyed the Property to Federal National Mortgage Association ("Fannie Mae") by virtue of a quit-claim deed. (Doc. No. 11, Ex. 4.)

Plaintiffs initially filed a Complaint in Stearns County District Court, in which they assert the following four causes of action: (1) Declaratory Judgment, pursuant to Minn. Stat. § 555.02; (2) Injunctive Relief; (3) Violation of RESPA, 12 U.S.C. § 2605(e); and (4) Negligent and/or Fraudulent Misrepresentation. (Compl. ¶¶ 23-46.) BOA subsequently removed the action to this Court. (Doc. No. 1.)

Defendants now move to dismiss all of Plaintiffs' claims. Plaintiffs have failed to respond to Defendants' motions in any respect. The Court ...


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