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Fischer v. Ocwen Loan Servicing, LLC

United States District Court, D. Montana, Billings Division

June 16, 2015

JOHN DAVID FISCHER, JERALD DUANE FISCHER, and ANGIE LEE FISCHER, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, FEDERAL HOME LOAN MORTGAGE CORPORATION, BANK OF AMERICA, N.A., BAC HOME LOANS SERVICING, LP, RECONTRUST COMPANY, NA, JOHN DOES 1, 2, & 3, and all persons unknown claiming any right, title, estate, lien or interest in or to the real property described herein, or any part thereof, adverse to the Plaintiffs' title, Defendants.

ORDER AND FINDINGS and RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

CAROLYN S. OSTBY, Magistrate Judge.

I. INTRODUCTION

This action arises out of a trustee's sale of real property and involves, among other things, adjudication of title to the property in Billings, Montana. In prior proceedings, the Court granted in part and denied in part motions to dismiss brought by Defendants Ocwen Loan Servicing, LLC ("Ocwen") and Federal Home Loan Mortgage Corporation ("FHLMC"). See Order (ECF 23) ( adopting Findings and Recommendations (ECF 22)). With the Court's leave, Plaintiffs John David Fischer, Jerald Duane Fischer, and Angie Lee Fischer (the "Fischers") then filed a Second Amended Complaint (ECF 31) [1] adding two defendants - Bank of America, N.A. ("BOA") and BAC Home Loans Servicing, LP ("BAC"). The Fischers now assert the following claims, all of which derive from state law:

Count I: Quiet Title against all Defendants
Count II: Montana Consumer Protection Act violations by BOA, BAC, Ocwen, and ReconTrust Company, NA ("ReconTrust")
Count III: Fraud against BOA, BAC, and Ocwen
Count IV: Alternative Fraud I against BOA, BAC, and Ocwen
Count V: Alternative Fraud II against BOA, BAC, and Ocwen
Count VI: Constructive Fraud against BOA, BAC, and Ocwen
Count VII: Deceit against BOA, BAC, and Ocwen
Count VIII: Negligence/Negligent Misrepresentation against BOA, BAC, and Ocwen
Count IX: Implied Covenant of Good Faith and Fair Dealing against BOA, BAC, and Ocwen
Count X: Punitive damages against BOA, BAC, and Ocwen

ECF 31.

Now pending are BOA, BAC, and ReconTrust's Motion for Judicial Notice (ECF 47) and Motion to Dismiss (ECF 49 ).

II. BACKGROUND

For purposes of considering the pending motion to dismiss, the Court assumes that the following allegations in the Fischers' Second Amended Complaint are true.

On or about September 19, 2006, Jerald Fischer obtained a mortgage to the property at issue in this action (hereafter "the subject property")[2] secured by a Deed of Trust. ECF 31 at ¶ 10.

On or about December 8, 2006, Jerald Fischer quitclaimed his interest in the subject property to John David Fischer and himself. Id. at ¶ 11.

On or about October 5, 2010, Jerald Fischer and John Fischer executed a quit claim deed transferring the property to themselves and to Angie L. Fischer. Id. at ¶ 12.

On April 7, 2011, the Deed of Trust at issue was assigned to BAC and was recorded on or about April 13, 2011. Id. at ¶ 13. On April 13, 2011, ReconTrust was substituted as successor trustee for the Deed of Trust. Id. at ¶ 14.

Sometime in 2011, the Fischers requested a mortgage modification. BAC suggested modifying the mortgage through the federal government's Home Affordable Modification Program ("HAMP") through BAC. Representatives of BAC informed the Fischers that the only way that a mortgage modification could be accomplished through this program was if the Fischers did not make mortgage payments for two months. BAC encouraged the Fischers to default on the mortgage obligation to qualify for the HAMP modification. Id. at ¶ 15.

In December 2011 and January 2012, the Fischers began the application process for a mortgage payment modification through the HAMP through BAC. Id. at ¶ 16.

As a part of the HAMP application process, BAC informed the Fischers that foreclosure processes may be initiated, but that the Fischers' home would not ...


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