Opinion
Civil Action No. 1:14-cv-327
10-10-2014
KALEMBA BALIMUNKWE, Plaintiff, v. BANK OF AMERICA, N.A., AS SUCCESSOR TO FIRST FRANKLIN FINANCIAL CORP., et al., Defendants.
Black, J.
ORDER AND REPORT AND RECOMMENDATION
Plaintiff Kalemba Balimunkwe brings this action against defendants Bank of America, N.A., as successor to First Franklin Financial Corporation (Bank of America), and Residential Credit Solutions, Inc. (Residential Credit). The action was originally filed in the Hamilton County, Ohio Court of Common Pleas but was removed to the district court by defendant Bank of America on the basis of the Court's diversity jurisdiction. (Doc. 1). This matter is before the Court on defendant Bank of America's motion for judgment on the pleadings (Doc. 21), plaintiff's memorandum in opposition to the motion (Doc. 23), Bank of America's reply memorandum in support of the motion (Doc. 26), and plaintiff's supplemental memorandum (Doc. 29); Defendant Bank of America's motion to strike plaintiff's supplemental memorandum (Doc. 33); plaintiff's motion to deem facts admitted/motion for judgment on the pleadings (Doc. 30), defendants' memoranda in opposition to plaintiff's motion (Docs. 35, 37), and plaintiff's reply memoranda in support of his motion (Docs. 36-1, 39); and plaintiff's motion for leave to file supplemental memorandum in opposition to defendant's motion for judgment on the pleadings and in support of motion to deem facts admitted/motion for judgment on the pleadings (Doc. 36).
I. Introduction
Plaintiff, a resident of Ohio, alleges that First Franklin Financial Corporation (First Franklin) was a home mortgage lender specializing in subprime loans which was acquired by Bank of America in September 2008. (Complaint, Doc. 4 at p. 1). Plaintiff alleges that Residential Credit is a wholly owned subsidiary of RCH LLC and is both a residential mortgage subprime servicer and residential mortgage special servicer, and that Residential Credit is the owner of the loan in issue. (Id.).
The page numbers referenced are the cm-ecf page numbers assigned by the district court's electronic filing system.
Plaintiff makes the following allegations in the complaint: Plaintiff obtained a mortgage loan from First Franklin on April 2, 1999, in the amount of $47,000 (the "First Loan"). (Doc. 4, Complaint, ¶ 1; Doc. 4, Pltf. Affidavit; Doc. 10, Exh. A). The First Loan had a variable interest rate, and monthly payments on the First Loan ranged between $640 and $680 per month. (Complaint, ¶ 2; Doc. 4, Pltf. Aff.). On or about October 26, 2004, plaintiff borrowed $28,000 from Home Ownership of Greater Cincinnati ("Second Mortgage"), and on December 7, 2004, the mortgage amount was modified to $38,000. (Complaint, ¶ 3; Doc. 4, Pltf. Aff.; Doc. 10, Exh. II). Plaintiff later learned this was a "deferred mortgage" (or "balloon mortgage") with a 0% interest rate and no regular monthly payments, which must be paid in full on the maturity date of February 1, 2025. (Complaint, ¶ 4; Doc. 4, Pltf. Aff.). The balloon mortgage was not fully explained to plaintiff, and he was under the false impression that the First Loan and Second Mortgage had been combined into one loan; as a consequence, he paid his monthly mortgage to First Franklin for eight years with the understanding he was paying on the First Loan and the Second Mortgage with the same check. (Complaint, ¶¶ 5-7; Doc. 4, Pltf. Aff).
Doc. 10 includes exhibits that are referenced in the complaint but were submitted as a separate document by plaintiff.
In July 2010, First Franklin advised plaintiff to start sending his payments to Residential Credit. (Complaint, ¶ 8; Doc. 4, Pltf. Aff.). Plaintiff did so but grew suspicious and asked Residential Credit to send him the remaining total balance on the mortgage, and in October 2011 he subsequently requested proof of the mortgage and a copy of the mortgage note. (Complaint, ¶¶ 8-10; Doc. 4, Pltf. Aff.). Plaintiff was not sent a copy of the First Loan from 1999 for $47,000, which is the only loan he had taken out with First Franklin, but instead he received an application form for cash out/debt consolidation, right to cancel form, and a 30-year mortgage with First Franklin in the amount of $63,750 which amortized in 2034 (2004 Loan), all of which were dated February 10, 2004 and on which someone had forged his signature and had signed another name plaintiff did not recognize. (Complaint, ¶¶ 11-13; Doc. 4, Pltf. Aff.; Doc. 10, Exh. III). Plaintiff had never seen these documents before and had not applied for or agreed to the 2004 Loan and had not applied to any company for debt consolidation. (Complaint, ¶¶ 13, 21; Doc. 4, Pltf. Aff.). Residential Credit had purchased the 2004 Loan on August 2, 2010. (Complaint, ¶ 14; Doc. 10, Exh. IV). When plaintiff received the documentation with his forged signature, he informed Residential Credit it was enforcing a forged contract and he stopped making payments in December 2011. (Complaint, ¶ 15; Doc. 4, Pltf. Aff.; Doc. 10, Exh. V). Residential Credit would not disclose to plaintiff who owned the 2004 Loan and informed him that the loan could be referred to foreclosure, and plaintiff thereafter resumed payments on January 14, 2012, and made late payments to avoid foreclosure. (Complaint, ¶¶ 16-18; Doc. 4, Pltf. Aff.; Doc. 10, Exh. VI).
In December 2011, plaintiff confirmed that Hamilton County records showed the 2004 Loan was recorded on February 23, 2004. (Complaint, ¶ 19; Pltf. Aff.). Plaintiff called the First Franklin customer service number in February 2012 and reached a Bank of America representative, who informed plaintiff that Bank of America "took over" First Franklin. (Complaint, ¶ 23; Doc. 4, Pltf. Aff.). Plaintiff requested a print out of his payment history from April 1999 through April 2004, but he was sent a printout from April 2004 through July 2010 and was informed that Bank of America did not have any information about the mortgage prior to that time. (Complaint, ¶¶ 23-24; Doc. 4, Pltf. Aff; Doc. 10, Exh. VIII).
Exhibit VIII includes a letter dated May 28, 2013, from Bank of America to plaintiff stating that Bank of America had investigated plaintiff's claim that the 2004 Loan was reflecting on his credit report, the loan did not belong to him, and someone had used his personal information without plaintiff's knowledge or consent to fraudulently originate the loan in his name. Bank of America reported it had been unable to substantiate that the loan had been originated without plaintiff's knowledge or consent and it was presently unable to comply with plaintiff's request to remove all mention of the loan from his credit file; instead, Bank of America determined to maintain the existing reporting of the loan as "in dispute." (Doc. 10, Exh. VIII).
After making additional inquiries, plaintiff was informed that the First Loan had been paid off on September 30, 2004, because he had refinanced it by taking out a new loan on February 10, 2004. (Complaint, ¶¶ 26-31; Doc. 4, Pltf. Aff; Doc. 10, Exh. IX). The title agency that wrote the check to pay off the original mortgage sent plaintiff the 2004 Loan documents. (Complaint, ¶¶ 29-31; Doc. 10, Exh. IX). The refinanced loan documents have the same forged signatures as the other documents Residential Credit sent plaintiff. (Complaint, ¶ 30; Doc. 4, Pltf. Aff; Doc. 10, Exh. IX). The refinanced amount was $63,750, and plaintiff never received the difference of $16,750 between the First Loan in the amount of $47,000 and the 2004 Loan in this amount. (Complaint, ¶ 36; Doc. 4, Pltf. Aff.).
The documents submitted by plaintiff include a "Certificate of Satisfaction" filed in the Hamilton, County Recorder's Office on October 4, 2014, acknowledging that the First Loan had been discharged. (Doc. 10, Exh. A).
Based on these allegations, plaintiff brings claims for "Creation of an Invalid and Non Existent Contract" (Complaint, Count 1), alleging that First Franklin, which is succeeded in its assets and obligations by Bank of America, is the originator of the 2004 Loan; plaintiff had no knowledge of the 2004 Loan in the amount of $63,750 and did not apply for the 2004 Loan to pay off any existing loan on his property; and plaintiff never received the $16,750 difference between the amount of $47,000 paid to National Financial Services Corporation, the then owner of the First Loan, to release that lien and $63,750, the amount of the 2004 Loan. Plaintiff alleges that as a result of First Franklin's fraudulent misrepresentations, he has been damaged by the amounts he was deceived into paying First Franklin until it assigned the 2004 Loan to Residential Credit, a total of $36,816. (Complaint, ¶¶ 40-50).
Plaintiff also brings a claim against Residential Credit for "Willful, Wrongful, Mistaken and Erroneous Enforcement of Fraudulent Contract" (Id., Count 2), alleging that Residential Credit does not have a valid contract to allow the company to collect payments under the 2004 Loan. Plaintiff alleges that he has been damaged by the amount he has paid Residential Credit on the 2004 Loan, which totals approximately $9,917, and that he has been threatened with foreclosure under the "fraudulent and invalid" contract. Plaintiff seeks to enjoin Residential Credit from foreclosing on his property or to restore and quiet title of the property to plaintiff's benefit if it has been sold. (Id., ¶¶ 51 -59).
II. Miscellaneous motions
Defendant Bank of America filed a motion to strike plaintiff's supplemental memorandum in opposition to defendant's motion for judgment on the pleadings from the record on August 22, 2014. (Doc. 33). Defendant states that plaintiff filed the supplemental memorandum 25 days after Bank of America filed its reply memorandum, plaintiff did not obtain leave of court to file the supplemental memorandum, and the supplemental memorandum does not comply with the Local Rules of Court. On September 2, 2014, plaintiff filed a motion seeking leave of court to file his supplemental memorandum as well as a reply memorandum in support of his motion to deem facts admitted/motion for judgment on the pleadings (Doc. 30). (Doc. 36).
S.D. Ohio Civ. R. 7.2(a) provides for the filing of a motion, an opposing memorandum, and a reply memorandum and specifies that no additional memoranda beyond those enumerated are permitted except upon leave of court for good cause shown. Consistent with Rule 7.2(a), plaintiff does not need leave of court to file a reply memorandum in support of his motion to deem facts admitted/motion for judgment on the pleadings (Doc. 30). However, plaintiff is not permitted to file a supplemental response in opposition to defendant's motion for judgment on the pleadings without showing good cause, which he has failed to establish. Accordingly, plaintiff's request for leave of court to file a supplemental memorandum in opposition to defendant's motion for judgment on the pleadings (Doc. 36) is DENIED. Defendant's motion to strike the supplemental memorandum (Doc. 33) is GRANTED. The Court orders the supplemental memorandum (Doc. 29) be stricken from the record.
III. Bank of America's motion for judgment on the pleadings
Defendant Bank of America moves for judgment on the pleadings on three grounds. First, Bank of America alleges that any cause of action for fraud alleged by plaintiff was discoverable in 2004 and is therefore barred by the controlling four-year statute of limitations. Second, Bank of America contends that plaintiff has failed to plead his fraud claims against it with particularity as required under Fed. R. Civ. P. 9(b). Finally, Bank of America alleges that plaintiff has sued the wrong party. Bank of America contends that it is not a proper party to this lawsuit because plaintiff sued it as "successor trustee to First Franklin Financial Corporation," when in fact First Franklin is a wholly owned subsidiary of Bank of America. (See Doc. 7, First Franklin's Answer, ¶ 23). Bank of America alleges that plaintiff's complaint should therefore be directed at First Franklin and not Bank of America. (Doc. 21 at 6).
The answer is filed on behalf of "Defendant, First Franklin Financial Corporation (incorrectly sued as Bank of America as successor to First Franklin Financial Corporation). . . ." (Doc. 7 at 1).
A. Standard of review
A district court reviews a Rule 12(c) motion for judgment on the pleadings under the same standard applicable to a Rule 12(b)(6) motion to dismiss. EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001). When deciding such a motion, the court must accept all well-pleaded material allegations of the pleadings as true and may grant the motion only if the moving party is nonetheless clearly entitled to judgment. JP Morgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). The plaintiff must allege facts which, if accepted as true, are sufficient to both "raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Hensley Mfg., Inc. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "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." Iqbal, 556 U.S. at 678. Although the Court must accept all well-pleaded factual allegations in the complaint as true, it need not "accept as true a legal conclusion couched as a factual allegation." Id. (quoting Twombly, 550 U.S, at 555).
Under the federal rules, when "alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b). The Sixth Circuit has interpreted Rule 9(b) to require that a plaintiff "allege the time, place, and content of the alleged misrepresentations on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud." Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006) (citation and internal quotation omitted) (quoting Coffey v. Foamex L.P., 2 F.3d 157, 161-62 (6th Cir. 1993)). "At a minimum, Rule 9(b) requires that the plaintiff specify the 'who, what, when, where, and how' of the alleged fraud." Id. (quoting United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997) (citation omitted)).
Rule 9(b) is not to be read in isolation, but is to be interpreted in conjunction with Fed. R. Civ. P. 8. U.S. ex rel Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 503 (6th Cir. 2007) (citing Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 679 (6th Cir. 1988)). "Rule 8 requires only 'a short and plain statement of the claim' made by 'simple, concise, and direct allegations.'" Id. When read in conjunction with Rule 8, "it is clear that the purpose of Rule 9 is not to reintroduce formalities to pleading, but is instead to provide defendants with a more specific form of notice as to the particulars of their alleged misconduct." Id. (citing Michaels Bldg. Co., 848 F.2d at 679) ("[T]he purpose undergirding the particularity requirement of Rule 9(b) is to provide a defendant fair notice of the substance of a plaintiff's claim in order that the defendant may prepare a responsive pleading."); Sanderson, 447 F.3d at 877 (dismissal of qui tarn action under the False Claims Act was appropriate where the complaint contained no specific information to apprise the defendants of the precise misconduct charged against them and to protect them "against spurious charges of immoral and fraudulent behavior") (quoting United States ex. rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1310 (11th Cir. 2002)).
It is well-settled that a document filed pro se is "to be liberally construed" and that a pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the Sixth Circuit has recognized that the Supreme Court's "liberal construction" case law has not had the effect of "abrogat[ing] basic pleading essentials" in pro se suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
In determining the sufficiency of the complaint, the Court's review is confined to "the pleadings, exhibits attached to or addressed in the complaint, documents included with a motion to dismiss if referenced in the complaint, and public records." Vandenheede v. Vecchio, 541 F. App'x 577, 579 (6th Cir. 2013) (citing Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011)). The Court may consider documents integral to or attached to the pleadings when ruling on a Rule 12 motion to dismiss without converting the motion to one for summary judgment. Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007).
B. Plaintiff's claims against Bank of America should not be dismissed.
i. The pleading requirements of Fed. R. Civ. P. 9(b) are satisfied.
Ohio law governs plaintiff's claims in this diversity action. See Equitable Life Assur. Soc. of U.S. v. Poe, 143 F.3d 1013, 1016 (6th Cir. 1998) (in actions brought in federal court invoking diversity jurisdiction, a court must apply the same substantive law that would apply if the action had been brought in a state court of the jurisdiction where the federal court is located) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). The elements of a fraud claim under Ohio law are: "(1) a representation or, when there is a duty to disclose, concealment of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance on the representation or concealment, and (6) an injury proximately caused by that reliance." Lasmer Indus., Inc. v. AM Gen., LLC, 741 F. Supp.2d 829, 839-40 (S.D. Ohio 2010) (quoting Williams v. Aetna Fin. Co., 700 N.E.2d 859, 868 (Ohio 1998)). See also RBS Citizens, N.A. v. Zigdon, No. 93945, 2010 WL 2961534, at *6 (Ohio App. 8th Dist. July 29, 2010) (citing Richard v. WJW TV-8, Cuyahoga App. No. 84541, 2005 WL 616322 (Ohio App. 8th Dist. March 17, 2005)).
The essence of plaintiff's claim against Bank of America is that plaintiff was induced by First Franklin's misrepresentations to make payments on a loan that was fraudulently originated by First Franklin; plaintiff suffered damages as a result of his justifiable reliance on First Franklin's fraudulent misrepresentations; and Bank of America is liable as First Franklin's successor for First Franklin's fraudulent misrepresentations and plaintiff's resulting injury. (Complaint, Doc. 4). Because plaintiff's claim against Bank of America sounds in fraud, Fed. R. Civ. P. 9(b)'s heightened pleading standard applies to plaintiff's claim.
The complaint against Bank of America satisfies Rule 9(b)'s pleading requirements. The complaint includes specific factual allegations, which must be accepted as true for purposes of defendant's motion, and documentation in support of plaintiff's claim that First Franklin created a fraudulent loan in February 2004 using documents which contained his forged signature and First Franklin continued to collect payments on the fraudulent loan from 2004 until First Franklin sold the loan to Residential Credit in 2010. Plaintiff's forgery and other fraud allegations, considered in conjunction with the documentation plaintiff has submitted with the complaint, are sufficient to apprise Bank of America of the time, place, content and nature of the alleged fraud. Further, the complaint includes allegations which connect Bank of America to the 2004 Loan and therefore to the alleged fraud. Plaintiff alleges that Bank of America acquired First Franklin in 2008 and Bank of America has succeeded to First Franklin's "assets and obligations." (Complaint, Doc. 4, pp. 1-2). Plaintiff further alleges that when he contacted the customer service number for First Franklin in February 2012, he instead reached Bank of America, he was informed that Bank of America had "[taken] over" First Franklin, and he was sent information on the 2004 Loan by Bank of America at his request. (Complaint, ¶¶ 23, 24; Doc. 10, Exh. VIII). In addition, documents submitted by plaintiff show that Bank of America investigated the 2004 Loan around May 2013 after plaintiff reported that it had been fraudulently originated in his name, and Bank of America determined to maintain the existing reporting of the loan as "in dispute." (Doc. 10, Exh. VIII). These allegations of the complaint and supporting documentation are sufficient to apprise Bank of America that plaintiff seeks to hold it liable as the successor to First Franklin for the purportedly fraudulent loan originated by First Franklin in 2004.
Bank of America nonetheless denies that it is a proper party to this lawsuit. Bank of America states that it is not the "successor trustee" to First Franklin and instead contends that First Franklin is its wholly owned subsidiary. (Doc. 21 at 6, citing Doc. 7, First Franklin's Answer, ¶ 23). Bank of America therefore alleges that plaintiff should have sued First Franklin rather than Bank of America. (Id. at 6-7). However, Bank of America has neither legally nor factually developed its argument that it cannot be held liable as First Franklin's parent corporation for the fraudulent acts of its wholly owned subsidiary. See S.D. Ohio Civ. R. 7.2(a), (b). Nor is it apparent from the complaint and supporting documentation that, accepting as true plaintiff's allegations that First Franklin created a fraudulent loan on which it collected payments from plaintiff, liability for the fraud cannot be imposed on Bank of America based on its corporate relationship with First Franklin. Accordingly, dismissal of the complaint against Bank of America at the pleading stage is not warranted on the ground Bank of America is not a proper party to the suit.
Plaintiff has named "Bank of America as successor to First Franklin Financial Corporation" as the defendant to this lawsuit. (Complaint, Doc. 4, p. 1).
ii Statute of limitations
The statute of limitations for a fraud claim brought under Ohio law is four years from the date the cause of action accrued. Ohio Rev. Code § 2305.09(C). See also Foster v. Wells Fargo Fin. Ohio, Inc., 960 N.E.2d 1022, 1025 (Ohio App. 8th Dist. 2011) (citing Ohio Rev. Code § 2305.09). A fraud cause of action does not accrue until the plaintiff discovers or should have discovered the fraud. Foster, 960 N.E.2d at 1025 (citing Investors REIT One v. Jacobs, 546 N.E.2d 206, syll. ¶ 2(b) (Ohio 1989)); Five Star Fin. Corp. v. Merch's Bank & Trust Co., 949 N.E.2d 1016, 1020 (Ohio App. 1st Dist. 2011) ("A four-year statute of limitations applies to claims for fraud [b]ut the limitations period does not begin to run until the fraud is discovered.") (citing Ohio Rev. Code § 2305.09). See also Collins v. Sotka, 692 N.E.2d 581, 582 (Ohio 1998) ("[U]nder the discovery rule, which is an exception to the general rule, a cause of action accrues when the plaintiff discovers, or in the exercise of reasonable care should have discovered, that he or she was injured by the wrongful conduct of the defendant.") (citing O 'Strieker v. Jim Walter Corp. 447 N.E.2d 727 (Ohio 1983); Oliver v. Kaiser Community Health Found., 449 N.E.2d 438, syll. (Ohio 1983)). "In essence, the running of the limitations period is delayed until triggered by a 'cognizable event' that alerts the plaintiff that he or she was injured by the defendant." Collins, 692 N.E.2d at 582.
Investors REIT One construed a former version of Ohio Rev. Code § 2305.09(D), which expressly provided that a cause of action "shall not accrue until the wrongdoer is discovered; nor, if it is for fraud, until the fraud is discovered."
Bank of America argues that insofar as plaintiff may seek the benefit of the discovery rule by arguing that the statute of limitations was tolled because he did not discover the alleged fraud until sometime after 2004, the complaint confirms that plaintiff should have discovered the alleged fraud in 2004 but willfully ignored indications of it. Bank of America asserts that according to plaintiff, his payments under the First Loan were "between $640 and $680 per month" but were reduced to approximately $474.24 per month in February 2004 when the allegedly fraudulent loan was issued. (Doc. 21 at 4-5, citing Complaint, Doc. 4, p. 17; Doc. 4, Pltf. Aff., p. 1). Bank of America alleges that this significant decrease in plaintiff's mortgage payment should have alerted him to a change in his mortgage account. (Id. at 5). Bank of America further notes that according to plaintiff, a mortgage for the 2004 Loan was filed on February 10, 2004, with the Hamilton County Recorder's Office, and this public record was discoverable as of 2004. (Id., citing Complaint, Doc. 4, p. 4).
Plaintiff actually alleges that the payments were reduced to $472.24 per month. (Complaint, Doc. 4, p. 17).
In response, plaintiff alleges that he could not have discovered the alleged fraud earlier because although his payments of principal and interest were reduced to $472.24 per month in 2004, his monthly payments including property taxes and insurance always exceeded $626. (Doc. 23 at 2-3). Bank of America asserts in reply that there is no suggestion in plaintiff's complaint that the reduced payment did not include taxes and insurance. (Doc. 26 at 4). Bank of America also contends that plaintiff should have discovered the fraud because "[t]he new loan resulted in a new loan number." (Id. at 4).
Bank of America's arguments are not well-taken. First, Bank of America's conclusory allegation that the "new loan resulted in a new loan number" is insufficient to show that plaintiff should have discovered the alleged fraud in 2004. Second, a review of the complaint shows that plaintiff specifically indicated that the payment of $472.24 he began making in 2004 included only principal and interest. Plaintiff alleges in the complaint that he seeks to recover the amounts he was deceived into paying First Franklin during the period February 10, 2004 to the time the loan was assigned to Residential Credit on August 1, 2010, which plaintiff calculates to be "$472.24 x 78mo = $36,835 which, is the accounting of his payment of Principal and Interest on this fraudulent loan he never entered into[.]" (Doc. 4 at 17). Further, plaintiff alleges in his affidavit that "changes in the monthly payments happened periodically but they were not drastic enough to enable me to detect the fraud. Insurance, taxes, and interest kept on changing." (Doc. 4, Pltf. Aff, p. 2). In light of these allegations, it is not apparent from the face of the complaint that plaintiff should have discovered the alleged fraud in 2004, or more than four years before he instituted this lawsuit. Thus, the complaint should not be dismissed as time-barred.
iii. Conclusion
Accepting all well-pleaded material allegations of the pleadings as true, Bank of America is not clearly entitled to judgment on plaintiff's claim against it. JP Morgan Chase Bank, N.A., 510 F.3d at 581. Bank of America's motion for judgment on the pleadings should therefore be denied.
IV. Plaintiff's motion to deem facts admitted/motion for judgment on the pleadings
On August 18, 2014, plaintiff filed a motion to deem facts admitted and for judgment on the pleadings, alleging that he attempted to cooperate with defendants in submitting a Rule 26(f) report but they ignored his input; he has submitted a settlement proposal to defendants as instructed by the Court; he filed his expert's forensic handwriting report; and he has submitted his mandatory initial disclosures to defendants. (Doc. 30). Plaintiff alleges that defendants did not file mandatory disclosures within 30 days pursuant to Fed. R. Civ. P. 26(f). Accordingly, plaintiff contends that the Court should consider his mandatory disclosures to be uncontested and the Court should deem the facts he has alleged to be admitted. Plaintiff requests judgment on the pleadings pursuant to these facts.
In response, defendants state that they have served their initial disclosures and that there is no basis for granting plaintiff judgment on the pleadings. (Docs. 35, 37). Defendants have attached the initial disclosures to their responses. (Id.). Accordingly, any request for relief by plaintiff based on defendants' failure to file their initial disclosures is moot. In any event, defendants' purported failure to timely serve their initial disclosures does not warrant granting judgment on the pleadings in favor of plaintiff. Plaintiff's motion should therefore be denied.
IT IS THEREFORE ORDERED THAT:
1. Plaintiff's motion for leave to file supplemental memorandum in opposition to defendant Bank of America's motion for judgment on the pleadings (Doc. 36) is DENIED. Defendant Bank of America's motion to strike plaintiff's supplemental memorandum (Doc. 33) is GRANTED. Plaintiff's supplemental memorandum in opposition to defendant Bank of America's motion for judgment on the pleadings (Doc. 29) is STRICKEN from the record.
IT IS THEREFORE RECOMMENDED THAT:
1. Defendant Bank of America's motion for judgment on the pleadings (Doc. 21) be DENIED. 2. Plaintiff's motion to deem facts admitted/motion for judgment on the pleadings (Doc. 30) be DENIED. Date: 10/10/14
/s/_________
Karen L. Litkovitz
United States Magistrate Judge
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. A. Signature X [ ] Agent [ ] Addressee B. Received by (Printed Name) C. Date of Delivery D. Is delivery address different from item 1? [ ] Yes If YES, enter delivery address below: [ ] No 1. Article Addressed to: 3. Seivice Type [ ] Certified Mail [ ] Express Mail [ ] Registered [ ] Return Receipt for Merchandise [ ] Insured Mail [ ] C.O.D. 4. Restricted Delivery? (Extra Fee) [ ] Yes 2. Article Number (Transfer from service label) 7011 3500 0001 5345 6120 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540