Opinion
Case No. 17-10218
08-16-2017
DOUGLASS SHERMETA and BETH SHERMETA, Plaintiffs, v. SELECT PORTFOLIO SERVICING, INC., et al., Defendants.
ORDER ON DEFENDANTS' MOTION TO DISMISS (ECF #6)
In this action, Plaintiffs Douglass and Beth Shermeta assert claims based upon certain alleged acts and omissions by Defendants in connection with (1) a proposed short sale transaction and (2) a proposed deed in lieu of foreclosure transaction. With respect to the short sale transaction, Plaintiffs assert claims for tortious interference with contract and tortious interference with business expectancy. (See Compl. at Counts I and II, ECF #1-2 at Pg. ID 21-22, hereinafter the "Short Sale Claims."). With respect to the deed in lieu of foreclosure transaction, Plaintiffs assert claims for fraudulent misrepresentation, breach of contract, and promissory estoppel. (See id. at Counts II, IV, and IV, Pg. ID 22-24, hereinafter the "Deed in Lieu Claims."). Plaintiffs also assert a claim for breach of fiduciary duty. (See id. at Count VII, Pg. ID 24-25.)
The Complaint does not include a Count V. --------
On March 16, 2017, the Defendants filed a motion to dismiss all of the Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (See ECF #6.) The Court held a hearing on Defendants' motion on August 16, 2017. For the reasons stated on the record at the hearing, the Court rules on the motion as follows:
• The Short Sale Claims (Counts I and II of the Complaint) are DISMISSED. While the Plaintiffs may include different claims related to the short sale in an Amended Complaint (i.e., not tortious interference claims), they are cautioned to carefully review those claims before filing them in order to determine whether there is a good faith argument that they are not barred by the applicable Statute of Frauds.
• Plaintiffs may AMEND the Deed in Lieu Claims (Counts III, IV, and VI of the Complaint) to add the additional factual allegations identified during the August 16, 2017, hearing. With those additional allegations, the Court concludes that the Deed in Lieu Claims are plausible.
• Plaintiffs' breach of fiduciary claim (Count VII of the Complaint) is DISMISSED.
Plaintiffs shall file their First Amended Complaint as set forth above within 21 days of this Order. Defendants shall file an answer or otherwise respond to the First Amended Complaint within 21 days of its filing.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE Dated: August 16, 2017
I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on August 16, 2017, by electronic means and/or ordinary mail.
s/Holly A. Monda
Case Manager
(810) 341-9764