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Roybal v. Bank of America, N.A.

United States District Court, D. Montana, Missoula Division

April 6, 2015

PAUL ROYBAL, Plaintiff,


DANA L. CHRISTENSEN, Chief District Judge.

Before the Court is Defendants' motion to dismiss. For the reasons explained, the Court grants the motion in part and denies it in part.


Plaintiff Paul Roybal ("Roybal") brings this diversity action against Defendant Bank of America, N.A. ("BANA") alleging that BANA breached an oral promise to Roybal to modify his home loan ("the loan"), and committed various other torts while servicing the loan. Roybal paid off the loan in full in February of 2011. BANA moves to dismiss the Complaint in its entirety, asserting that Roybal's tort claims must be dismissed for violation of the statute of limitations, Roybal's breach of contract claim fails to state a claim, and that all damages arising from alleged negative credit reporting are preempted.

In May of 2008, Roybal obtained a refinance loan from BANA for property located in Kalispell, Montana. In 2009, he experienced financial difficulties, had trouble making his scheduled mortgage payments, and contacted BANA seeking assistance in modifying the loan. In February 2010, a BANA representative told Roybal, over the telephone, that he had been approved for a loan modification. Roybal was told to make three trial payments and then he would be approved for the modification. Roybal made the three trial payments, but never received written confirmation of the modification.

Over the course of the ensuing year, Roybal was subjected to a series of frustrating, confusing, and conflicting communications with BANA representatives regarding the promised loan modification. Following the three trial payments, BANA did not approve the promised loan modification. Instead, BANA repeatedly asked for more documentation and information in order to process the loan modification request.

On October 7, 2010, Roybal received notice that his loan had been referred for foreclosure proceedings. More confusing and conflicting communications with BANA representatives then ensued. In February 2011, within a week of the scheduled foreclosure sale date, Roybal managed to obtain alternate financing and paid off the loan in full.

Sometime in 2012, Roybal received a 1099-Int from BANA which indicated that all of the payments he made in 2010 under his approved temporary payment plan had been applied to his loan. Roybal then "knew that [BANA] had, in fact, utilized the trial payments he had submitted in 2010, in accordance with their agreement." (Doc. at 13.) Prior to receiving the 1099-Int, "Roybal did not definitively know if his trial payments had ever been received, " and did not know that they "had been applied to pay the interest on the loan." Id.

Roybal filed this action in Montana's Eleventh Judicial District Court in Flathead County on November 5, 2014, asserting claims for breach of contract, breach of implied covenant, negligence, breach of the Consumer Protection Act, breach of fiduciary duty, constructive fraud, negligent misrepresentation, fraud, and punitive damages. BANA removed to this Court on December 5, 2014, on the basis of diversity jurisdiction. BANA moves to dismiss pursuant to Rule 12(b)(6).

Legal Standard

Rule 12(b)(6) motions test the legal sufficiency of a pleading. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss, 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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the court can draw a "reasonable inference" from the facts alleged that the defendant is liable for the misconduct alleged. Id. On a Rule 12(b)(6) motion to dismiss, the court must accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party. Kneivel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

When a motion to dismiss is based on the running of the statute of limitations, the motion may be granted only "if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)(quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). Such a motion may be granted only when "the running of the statute is apparent on the face of the complaint." Jablon, 614 F.2d at 682. If the applicability of equitable tolling depends on factual questions not clearly resolved in the pleadings, a motion to dismiss based on the running of the statue must be denied. Supermail Cargo, Inc., 68 F.3d at 1207.


I. Breach of ...

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