United States District Court, D. Montana, Missoula Division
LENNY J. RUSTAD, Plaintiff,
BANK OF AMERICA CORPORATION and BANK OF AMERICA, N.A., Defendants.
L. Christensen, Chief Judge.
the Court is Defendants Bank of America Corporation and Bank
of America, N.A.'s ("BANA") motion to
dismiss. For the reasons given below, the Court
grants the Defendants' motion in part and denies it in
a motion to dismiss, material allegations of the complaint
are taken as admitted, and the complaint is to be liberally
construed in favor of the plaintiff." Kennedy v.
H&MLanding, Inc., 529 F.2d 987, 989 (9th Cir. 1976).
Lenny Rustad ("Rustad") owned a residence at 820
Birch Street in Anaconda, Montana. On May 30, 2007, Rustad
secured a mortgage for his residence from Ascent Home Loans,
Inc. After securing the mortgage, the servicing of the loan
was transferred to BANA.
September 14, 2009, Rustad received his first letter from
BANA introducing the Home Affordable Modification Program
("HAMP"). The letter invited Rustad to enter into a
loan modification during HAMP's trial period. In order to
qualify for the program, Rustad submitted the documentation
requested by BANA and made three trial period payments with
the final payment being paid on December 1, 2009. Rustad
subsequently received a statement from BANA indicating he was
in the HAMP trial period plan.
then received a letter from BANA on January 23, 2010, warning
him that he must make a fourth trial period payment in order
to qualify for the HAMP modification. Rustad paid the fourth
trial period payment. In February and March 2010, Rustad
received letters from BANA indicating he remained in the HAMP
trial period plan. On July 15, 2010, Rustad received a notice
from BANA stating that the parties had mutually agreed upon a
"Special Forbearance" and that Rustad's failure
to make his past due payments under the "Special
Forbearance" resulted in termination. Following this
notice, Rustad continued to pay the modified loan amount, but
BANA rejected the payment and demanded payment of his total
past due amount of approximately $16, 000.
April 7, 2011, Rustad received a letter from BANA introducing
the National Homeownership Retention Program
("NHRP") and requested that he send in certain
documents. BANA sent two subsequent letters in May 2011
acknowledging receipt of the documents sent by Rustad for his
application for a NHRP modification. On July 13, 2011, BANA
sent a letter to Rustad indicating Rustad was not eligible
for any modifications and threatened foreclosure.
16, 2011, BANA sent another letter to Rustad indicating that
the previous determination that he was not eligible for the
HAMP program was erroneous and invited him to reapply. Rustad
reapplied for the HAMP program. On October 31, 2011, BANA
stated that since Rustad has not paid his past due amount,
his home loan was being referred to a Foreclosure Review
April 12, 2012, Rustad received a letter from his designated
"single point of contact" at BANA informing him
that he may be eligible for several of BANA's mortgage
assistance programs. On May 28, 2012, BANA informed Rustad by
phone that he was eligible for the Mortgage Settlement
Program. Further, BANA advised Rustad that to be eligible for
the Mortgage Settlement Program, Rustad would have to forgo a
HAMP review. Rustad agreed to forgo a HAMP review so he could
apply for the Mortgage Settlement Program.
contacted Rustad again on August 17, 2012, stating that he
would be eligible for a new modification program introduced
by a settlement agreement entered into by state and federal
governments and BANA. BANA acknowledged that Rustad had begun
the modification process by sending in documents and
information, but then requested an additional twenty-one
documents. Rustad complied and sent BANA all relevant
documents in September 2012.
October 2012, BANA sent several letters to Rustad stating
they had not received all the proper documentation as
requested. Again, Rustad sent BANA the requested
documentation. On November 5, 2012, Rustad was notified by
BANA that his loan modification was denied due to
January 12, 2013, Rustad received another loan modification
package from BANA indicating that he was eligible for a new
loan modification program introduced due to the national
settlement between state and federal government and BANA.
Based on the facts this is presumably the same loan
modification that was offered to Rustad in August 2012.
Rustad filled out all the forms included in the package and
returned them to BANA. On June 8, 2013, BANA sent a final
letter denying Rustad a loan modification due to failure to
produce all required documentation. Rustad appealed the final
denial of a loan modification to BANA. The appeal was denied
on July 10, 2013.
November 12, 2013, BANA notified Rustad that BANA will no
longer be servicing his loan. BANA transferred the loan
servicing to Specialized Loan Servicing. Subsequently, on
December 29, 2015, Rustad's residence was sold at a
12(b)(6) motions test the legal sufficiency of a pleading.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain "a short and plain statement of
the claim showing that the pleader is entitled to
relief." Rule 8 "does not require detailed factual
allegations, but it demands more than an unadorned,
Ashcroft v. Iqbal,556 U.S. 662, 678 (2009)
(internal citations and quotations omitted). "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.'" Id.
(quoting Bell Ail. 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,