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Conte v. Bank of Am., N.A.

United States District Court, D. Massachusetts

September 30, 2014

JON CONTE and KIMBERLY CONTE, Plaintiffs
v.
BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP and FEDERAL NATIONAL MORTGAGE ASSOCIATION, d/b/a FANNIE MAE, Defendants

For Jon Conte, Kimberly Conte, Plaintiffs: Jacob T. Simon, LEAD ATTORNEY, Liss Law, LLC, Brookline, MA.

For Bank of America, N.A., also known as BAC Home Loans Servicing, L.P., doing business as Bank of America Home Loans, Federal National Mortgage Association, doing business as Fannie Mae, Defendants: Stephen C. Reilly, LEAD ATTORNEY, Sally & Fitch LLP, Boston, MA.

Page 266

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR TO DISMISS

TIMOTHY S. HILLMAN, DISTRICT JUDGE.

Background

Plaintiffs Jon and Kimberly Conte (" Plaintiffs" ) have brought suit against Bank of America, NA (" BANA" ), as successor by merger to BAC Home Loan Servicing, LP, (" BAC" ) and Federal National Mortgage Association (" Fannie Mae" ), for alleged violations of law stemming from proceedings to foreclose on their home. Plaintiffs seek to forestall an eviction proceeding brought against them by BANA, and to rescind the underlying foreclosure and sale. BANA participates

Page 267

in the Home Affordable Modification Program (" HAMP" ), a federal program designed to promote home mortgage modifications in an effort to reduce foreclosures. As part of the program, BANA allegedly entered a trial period plan agreement (" TPP" ) with the Plaintiffs, but failed to consumate the agreement into a permanent loan modification. Plaintiff seeks relief for Defendants' alleged breach of contract (Count I), promissory estoppel (Count II), and breach of the covenant of good faith and fair dealing (Count III). Defendants now move to dismiss all claims dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Docket No. 20). For the reasons set forth below, I deny that motion.

Facts

Plaintiffs are a husband and wife living at 41 Wilson Road, Marlborough, MA 01752 (" the Property" ) with their four children. They are the former mortgagors of the Property, which they purchased 2006. Plaintiffs signed a 30 year mortgage for $332,000 in favor of Mortgage Electronic Registration Systems, Inc. (" MERS" ) and executed a note to the lender, Countrywide Home Loans, Inc.

Plaintiffs fell behind on their mortgage payments and applied for a loan modification. After submitting an application, they eventually secured a three-month HAMP trial loan modification agreement with BAC, which as executed on June 30, 2009. To apply for a HAMP loan modification, a borrower sends in an application containing personal financial information which the loan servicer then evaluates to determine whether the borrower is eligible for a trial plan payment agreement (" TPP" ). The TPP is a uniform agreement executed by servicers and eligible buyers.

Here, the TPP requires the Plaintiffs to comply with several conditions, including sending in documentation of income and expenses as well as making timely payments. The TPP also required Plaintiffs to make three reduced monthly payments: on July 18, 2009, September 1, 2009 and October 1, 2009, and stated that if Plaintiffs did this, and all other terms of the TPP were complied with, BAC would provide Plaintiffs with a loan modification.[1]

Plaintiffs signed the TPP and returned it to BAC along with the completed financial package that BAC had requested. Plaintiffs made timely payments and provided all other documentation required of them, according to the terms of the TPP. BAC failed to then provide a permanent loan modification agreement after the three months. On May 21, 2010, BAC sent correspondence to the Plaintiffs, denying them the permanent loan modification and stating failure to make trial plan payments as the ...


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