United States District Court, E.D. Louisiana
MICHAEL A. ALEXANDER
BANK OF AMERICA, N.A.
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
the Court is a Motion for Judgment on the Pleadings
(Rec. Doc. 7) filed by Defendant Bank of America,
N.A. (“Bank of America”), set for submission on
September 20, 2017. This motion is before the Court on the
briefs without oral argument. Pro Se Plaintiff
Michael A. Alexander (“Alexander”) has not filed
an opposition. For the following reasons, Defendant's
motion is GRANTED.
lawsuit arises out of a mortgage loan executed by Alexander.
(Rec. Doc. 7-1, p. 2). On January 19, 1999, Alexander and
Roxann Franklin Alexander executed a promissory note in the
principal amount of $92, 791.00 in favor of Deep South
Mortgage Company, Inc. (“Deep South”). (Rec. Doc.
7-2). The note was secured by a mortgage on Alexander's
immovable property located in Harvey, Louisiana. (Rec. Doc.
7-4). Deep South endorsed the note to Union Planters Bank,
National Association. (Rec. Doc. 7-2). On that same day,
Alexander executed an Amended and Restated Note in the
principal amount of $119, 975.66 in favor of the lender, BAC
Home Loans, LP. (Rec. Doc. 7-3). The Amended and Restated
Note provided that the “‘Lender' means BAC
Home Loans Servicing, LP and its successors and
assigns.” Id. The Amended and Restated Note
also contains a blank endorsement by Bank of America, as
successor by merger to BAC Home Loans Servicing, LP. (Rec.
Doc. 7-3, p. 3). The mortgage also secures the Amended and
11, 2009, Alexander entered into a Loan Modification
Agreement, whereby BAC Home Loans Servicing, LP, as a
subsidiary of Bank of America, agreed to amend and modify the
terms of the notes. (Rec. Doc. 7-1, p. 3). On January 15,
2015, Alexander and Home Loan Servicing, LP again agreed to
supplement and modify the terms of the original note. (Rec.
April 24, 2017, Alexander filed this lawsuit. In his
complaint, Alexander alleges Bank of America committed
various fraudulent procedures that resulted in injury and
loss to Alexander. (Rec. Doc. 1, p. 1). Alexander
particularly brings his fraudulent practices claim under the
Louisiana Unfair Trade Practices Act (“LUTPA”).
Alexander claims that Bank of America violated LUTPA by
engaging in deceptive trade practices. Particularly,
Alexander argues that his right to rescind the mortgage loan
was violated under the Truth in Lending Act
(“TILA”). 15 U.S.C. § 1601-1667. In
particular, Alexander claims that he is entitled to rescind
the mortgage loan because the lender (Bank of America and/or
Deep South) never signed the loan contract. (Rec. Doc. 1, p.
3). Additionally, Alexander argues that “it may have
been realized that the bank did not actually loan any money,
and that [Alexander] did not receive the signed invoice of
the debt. . . .” Id. Moreover, Alexander
claims that he was deprived of the required credit and
rescission disclosures under TILA and Regulation Z. According
to the language of Regulation Z:
The purpose of [the] regulation is to promote the informed
use of consumer credit by requiring disclosures about its
terms and cost. The regulation also includes substantive
protections. It gives consumers the right to cancel certain
credit transactions that involve a lien on a consumer's
principal dwelling, regulates certain credit card practices,
and provides a means for fair and timely resolution of credit
12 C.F.R. § 226.1(b). Alexander also argues that the
chain of title regarding the mortgage loan is corrupted
because Mortgage Electronic Registration Systems, Inc.
(“MERS”) “is no longer in existence.”
(Rec. Doc. 1, p. 2). Alexander argues MERS was absorbed by a
different corporation and is just a “strawman, [with]
no assets or employees, no members, just a shell.”
according to Alexander's complaint, his mortgage loan
“may have been converted” to a mortgage backed
security. (Rec. Doc. 1, p. 3). Alexander contends that his
mortgage loan was unlawfully used to fund a Pooling and
Servicing Agreement without his knowledge or consent.
Id. Alexander demands rights in the proceeds
generated under the Pooling and Servicing Agreement.
Id. Alexander asks for relief in the amount of $2,
000, 000.00 for the damages sustained from these claims.
Id. at p. 4.
motion for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c) is subject to the same standard as a
motion pursuant to Rule 12(b)(6). Doe v. MySpace,
Inc., 528 F.3d 413, 418 (5th Cir. 2008). “[A]ll
well-pleaded facts are viewed in the light most favorable to
the plaintiff, but plaintiffs must allege facts that support
the elements of the cause of action in order to make out a
valid claim.” City of Clinton v. Pilgrim's
Pride Corp., 632 F.3d 148, 152-53 (5th Cir. 2010).
“To avoid dismissal, a plaintiff must plead sufficient
facts to ‘state a claim to relief that is plausible on
its face.'” Gentilello v. Rege, 627 F.3d
540, 544 (5th Cir. 2010) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). The Court “do[es] not accept as true
conclusory allegations, unwarranted factual inferences, or
legal conclusions.” Plotkin v. IP Axess Inc.,
407 F.3d 690, 696 (5th Cir. 2005).
Law and Analysis
America contends that Alexander's LUTPA claim is
inapplicable because Bank of America is exempt from LUTPA
under La. Rev. Stat. § 51:1406(1) and Troung v. Bank
of America, N.A., 717 F.3d 377, 385-86 (5th Cir. 2013).
After considering the decision in Troung as well as
Alexander's complaint, the Court is persuaded that Bank
of America is correct. The Court also agrees with Bank of
America that Alexander's Truth in Lending Act
(“TILA”) claim is time-barred. In considering the
issue concerning Alexander's January 15, 2015 second Loan
Modification Agreement, which occurred within 3 years of the
filing of this lawsuit, the Court agrees with Judge
Vance's decision in Castrillo v. American Home Mortg.
Servicing, Inc., which held that a mortgagor's loan
modification agreement constitutes a mere modification of a
mortgagor's existing ...