United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W. MOLLOY, DISTRICT JUDGE
Phillip and Neoma Anderson (the "Andersons")
brought this action against Defendant Bank of America,
National Association, a subsidiary of Bank of America, a/k/a
BAC Home Loans Servicing, LP, f/k/a Countrywide Home
Loans Servicing, LP ("Bank of America"), asserting
eleven claims based on its servicing, modifying, and eventual
foreclosure of their mortgage. (Doc. 4.) Pursuant to Federal
Rule of Civil Procedure 12(c), Bank of America moves for
partial judgment on the pleadings as to all but two of the
Andersons' claims. (Doc. 13.) For the reasons discussed
below, Bank of America's motion is granted in part and
denied in part.
preliminary matter, Bank of America's brief refers to
material outside the pleadings. "Judgment on the
pleadings is limited to material included in the
pleadings." Yakima Valley Memorial Hosp. v. Wash.
St. Dep't of Health, 654 F.3d 919, 925 n.6 (9th Cir.
2011). However, in ruling on a Rule 12(c) motion, a court may
consider-in addition to the complaint-"documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice." Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007). A document "may be incorporated by reference
into a complaint if the plaintiff refers extensively to the
document or the document forms the basis of the plaintiffs
claim." United States v. Ritchie, 342 F.3d 903,
908 (9th Cir.2003). A court's decision to incorporate
documents by reference is reviewed for abuse of discretion.
Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160
(9th Cir. 2012).
case arises from allegations that Bank of America mishandled
the servicing, modifying, and eventual foreclosure of the
Andersons' mortgage, which secured property located at
120 Highland Drive, Kalispell, Montana 59901 (the
"Property"). (Doc. 4 at ¶ 5.) In March 2006,
the Andersons obtained a mortgage loan for $270, 000 (the
"Mortgage") evidenced by a promissory note and
secured by a Deed of Trust recorded against the Property.
(Id. at ¶¶ 5, 7; Doc. 14-1.) By 2009, the
Andersons fell behind on the Mortgage payments. (Doc. 4 at
¶ 9.) The Property was sold at a foreclosure sale nearly
three years later. (Doc. 14-2.)
Andersons assert that they made numerous attempts to
negotiate a loan modification between October 2009 and March
2011. (Doc. 4 at ¶ 10.) These ongoing negotiations
included a series of "trial period payment plans"
to establish a lower monthly payment and modify the Mortgage.
During this period, the Andersons were granted two trial
period payment plans beginning in 2009. (Id. at
¶¶ 10, 12.) The Andersons allege they made the
required trial payments in 2009 but were not given a
permanent modification. (Id. at ¶ 10.) In 2011,
Bank of America approved the Andersons for a second trial
period payment plan, requiring them to make three monthly
payments to permanently modify the Mortgage. (Id. at
¶ 12.) The Andersons allege that they made the required
payments and executed and returned the permanent loan
modification agreement, which established a new, lower
payment in May 2012. (Id. at ¶¶ 13-14).
The Andersons allege that, despite following Bank of
America's instruction regarding their Mortgage and
modified agreement, Bank of America did not honor this
agreement. "Unbeknownst" to the Andersons, Bank of
America foreclosed and sold the Property on September 24,
2012. (Id. at ¶ 19.) The Andersons were evicted
from the Property on June 6, 2013. (Id., at ¶
case commenced in Montana state court on June 3, 2016. A
First Amended Complaint ("Amended Complaint") was
filed on October 19, 2017, asserting eleven claims: (1)
breach of original contract; (2) breach of trial plan period
contract; (3) breach of modified contract; (4) promissory
estoppel; (5) negligence; (6) tortious breach of covenant of
good faith and fair dealing; (7) negligent misrepresentation;
(8) violations of Montana's Consumer Protection Act; (9)
fraud; (10) constructive fraud; and (11) punitive damages.
(Doc. 4.) Bank of America timely removed to this Court, (Doc.
1), and on May 9, 2018, sought partial judgment on the
pleadings as to all but two of the Andersons' claims,
(Doc. 13). Bank of America does not seek judgment on the
pleadings for the claims for breach of trial plan period
contract (Count II) or breach of modified contract (Count
III). In response, the Andersons concede their claims for
Montana Consumer Protection Act violations (Count VIII);
fraud (Count IX); and constructive fraud (Count X) are
12(c) motion for judgment on the pleadings is the functional
equivalent of a Rule 12(b)(6) motion to dismiss for failure
to state a claim, except it is filed after the answer.
See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1054 (9th Cir. 2011). Accordingly,
the inquiry is "whether the complaint's factual
allegations, together with all reasonable inferences, state a
plausible claim for relief." Id. A facially
plausible complaint "pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). "A pleading that
states a claim for relief 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). In considering the
motion, a court "must accept all factual allegations in
the complaint as true and construe them in the light most
favorable to the non-moving party." Fleming v
Pickard, 581 F.3d 922, 925 (9th Cir. 2009). However,
a court is not required to accept as true allegations that
are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences. Sprewell v. Golden St.
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "A
judgment on the pleadings is properly granted when there is
no material fact in dispute, and the moving party is entitled
to judgment as a matter of law." Ventress v. Japan
Airlines, 603 F.3d 676, 681 (9th Cir. 2010).
Count I: Breach of Original Contract
America argues that the Andersons' Amended Complaint does
not meet pleading standards for a breach of contract claim
because it contains only conclusory facts, fails to identify
the contract language breached, and fails to allege damages.
(Doc. 14 at 12-13.) The Andersons' breach of contract
claim is sufficiently pled to survive a Rule 12(c) motion.
breach of contract is an actionable wrong regardless of
whether actual damages stemmed from the breach. Puryer v.
HSBC Bank USA, 419 P.3d 105, ¶ 20 (Mont. 2018)
("A failure to show actual damages and the resulting
inference that none were sustained does not defeat the cause
of action.") It is undisputed that a valid contract
existed between the parties beginning in March 2006 when the
Andersons obtained the Mortgage. Count I of the Amended
Complaint alleges that Bank of America breached its
obligations under the Mortgage. (Doc. 4 at ¶ 25.) The
Andersons also allege they suffered "general and special
damages" because of the breach. Under Montana law, a
failure to plead actual damages for a contractual breach is
not fatal. Puryer at ¶ 21. Thus, the Andersons
"state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
Count IV: ...