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Jude Darrin v. Bank of America

July 6, 2012

JUDE DARRIN,
PLAINTIFF,
v.
BANK OF AMERICA, N.A. DEFENDANT.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Before the Court is Defendant's Motion to Dismiss Plaintiffs' Complaint (ECF No. 7) ("MTD").*fn1 For the reasons that follow, Defendant's Motion to Dismiss is GRANTED with leave to amend.

BACKGROUND*fn2

In 2004, Plaintiff Jude Darrin ("Darrin") states she refinanced her mortgage through Countrywide. (Compl. ¶ 9.) At that time, her mortgage payments were approximately $800 a month. (Id.) Darrin does not state where the property was located or provide any details as to the terms of the refinanced mortgage.*fn3

In 2009, Darrin alleges that Defendant Bank of America "took over" Countrywide and that by 2009, her mortgage payments had increased to nearly $1,100 a month. (Id.) At that time, Darrin applied for a loan modification through the federal Home Affordable Modification Program ("HAMP") in order to get her monthly payments lowered. (Id. at ¶ 10.) Darrin's modification request was directed to Bank of America for processing and approved after several months. (Id.)

In December 2009, Darrin began a "trial period" with Bank of America in which she received "payment coupons" in the amount of $675.87 each to use for the months of December 2009 through March 2010. (Id.) In April 2010, Darrin sent a payment of $675.87 to Bank of America. (Id. at ¶ 11.)

A few days later, Darrin "heard" from Bank of America that she was approved for a permanent loan modification set at $790.10.*fn4

(Id.) She was also told not to send payment for April, but had already done so. (Id.) She then called Bank of America and was allegedly told by an employee with the bank that she should send in the $114.23 difference between her payment and the modified amount. (Id.)

Darrin asserts that she has made all of her mortgage payments on time, both to Countrywide and to Bank of America. (Id. at ¶ 13.) However, in the summer of 2011, Darrin checked her credit report and found that Bank of America was reporting her mortgage late to credit agencies during the months of June 2011 and November 2009 through September 2010. (Id. at ¶ 15.)

Darrin states she was unaware of her allegedly late payments. (Id.) She asserts that she never received any notification from Bank of America that she was late on any payments. ( Id.) Darrin also alleges that she received credit under the "Pay for Performance" program, which rewards individuals for paying mortgages on time by giving credit to pay down principal. (Id. at ¶ 11.)

On or about September 15, 2011, Darrin wrote a letter to Bank of America asking them to contact the credit agencies which they had reported her to in order to get the late payment misinformation corrected. (Id. at ¶ 16.) She then sent an email to the CEO and President of Bank of America.

On September 27, she states that she was contacted by a "customer advocate" for Bank of America, who allegedly promised to "fix things." (Id.)

When Darrin did not hear back from the "customer advocate," she called Bank of America and spoke with an employee who advised her that her May 2010 payment was late because it had not been received until June 4, 2010. (Id. at ¶ 18.) Thereafter, Darrin spoke almost daily with Bank of America, for an indeterminate amount of time, trying to correct the alleged payment errors. (Id. at ¶ 19.) She claims she was repeatedly told that the errors would be corrected, but they never were. (Id.)

On or about September 15, 2011, Darrin sent a complaint and request for investigation to each of the three credit agencies. (Id. at ¶ 20.) Each credit agency thereafter advised her that Bank of America had confirmed the late payment information. (Id.) Darrin sent another letter to the three agencies in October, 2011, but again received the same response. (Id. at ¶ 28.) Darrin contends that as a result ...


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