The motion relies on Alabama law differentiating between an insurance agent, who works for the insurer, and an insurance broker, who works on behalf of the insured. The Farmers Entities cite a single case, Temploy, Inc. v. Nat'l Council on Compensation Ins., 650 F.Supp.2d 1145, 1156 (S.D. Ala. 2009), for the proposition that an individual procuring insurance through the Alabama Workers' Compensation Plan is functioning as an insurance producer. (Doc. 30 at 9).

A prima facie claim for defamation under Alabama law requires, "a false/defamatory statement concerning the plaintiff[.]" Temploy, Inc. v. Nat'l Council on Comp. Ins., 650 F. Supp. 2d 1145, 1155 (S.D. Ala. 2009) (citing Delta Health Grp. Inc. v. Stafford, 887 So. 2d 887, 895-96 (Ala. 2004)). In their response to Chase's motion for summary judgment, the Harrises contend, "It is clear from the complaint that the Plaintiffs allege that they were not in default in making their mortgage payments and that the Defendant was conducting a foreclosure sale as a result of Plaintiffs' alleged default on the mortgage debt."

A prima facie claim for defamation under Alabama law requires, among other things, "a false/defamatory statement concerning the plaintiff[.]" Temploy, Inc. v. Nat'l Council on Comp. Ins., 650 F. Supp. 2d 1145, 1155 (S.D. Ala. 2009) (citing Delta Health Group Inc. v. Stafford, 887 So. 2d 887, 895-96 (Ala. 2004); Gary v. Crouch, 867 So. 2d 310, 315 (Ala. 2003); Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1091 (Ala. 1988)). For the same reason discussed supra at III.

"The general rule in Alabama is that the mere failure to perform a contractual obligation will not sustain an action sounding in tort." Temploy, Inc. v. National Council on Compensation Ins., 650 F. Supp.2d 1145, 1153 (S.D. Ala. 2009). Thus, most of plaintiff's conclusory labels are not cognizable as viable claims here.

Alabama courts have held that "'[e]ven when a third party is not in privity with the parties to a contract and is not a third-party beneficiary to the contract, the third party may recover in negligence for breach of a duty imposed by that contract if the breaching party negligently performs the contract with knowledge that others are relying on proper performance and the resulting harm is reasonably foreseeable.'" Temploy, Inc. v. Natl Council on Comp. Ins., 650 F. Supp. 2d 1145, 1153 (S.D. Ala. 2009) (quoting QORE, Inc. v. Bradford Bldg. Co., Inc., 25 So. 3d 1116, 1124 (Ala. 2009)).

These decisions soundly reject the availability of negligence or wantonness claims under Alabama law in circumstances similar to those before this Court, and emphasize that mortgage servicing obligations are a creature of contract, not of tort, and stem from the underlying mortgage and promissory note executed by the parties, rather than a duty of reasonable care generally owed to the public. See generally Barber v. Business Products Center, Inc., 677 So.2d 223, 228 (Ala.1996) (“a mere failure to perform a contractual obligation is not a tort”), overruled on other grounds by White Sands Group, LLC v. PRS II, LLC, 32 So.3d 5 (Ala.2009); Temploy, Inc. v. National Council on Compensation Ins., 650 F.Supp.2d 1145, 1153 (S.D.Ala.2009) (“The general rule in Alabama is that the mere failure to perform a contractual obligation will not sustain an action sounding in tort.”). To the extent, then, that Wallace seeks to derive tort claims of negligence and wantonness to recover economic loss (no physical injuries) stemming from SunTrust's purported failure to perform contractual duties in the servicing of her mortgage, the Court finds that Wallace's negligence and wantonness claims fail to state claims upon which relief can be granted.

The Court agrees with these decisions' construction of Alabama law, and particularly their emphasis that the mortgage servicing obligations at issue here are a creature of contract, not of tort, and stem from the underlying mortgage and promissory note executed by the parties, rather than a duty of reasonable care generally owed to the public. See generally Barber v. Business Products Center, Inc., 677 So.2d 223, 228 (Ala. 1996) ("a mere failure to perform a contractual obligation is not a tort"), overruled on other grounds by White Sands Group, LLC v. PRS II, LLC, 32 So.3d 5 (Ala. 2009); Temploy, Inc. v. National Council on Compensation Ins., 650 F. Supp.2d 1145, 1153 (S.D. Ala. 2009) ("The general rule in Alabama is that the mere failure to perform a contractual obligation will not sustain an action sounding in tort."). To the extent, then, that the Selmans seek to derive tort claims of negligence and wantonness to recover economic loss (no physical injuries) stemming from CitiMortgage's purported failure to perform contractual duties vis a vis the servicing of their mortgage, the Court agrees with defendants that Counts One and Two do not state claims upon which relief can be granted.

Thus, Plaintiff's defamation claim must fail. See Temploy, Inc. v. Nat'l Council on Comp. Ins., 650 F. Supp. 2d 1145, 1156 (S.D. Ala. 2009)(finding Plaintiff Hard Hitters could not assert a viable defamation claim based on allegedly false statements about some other entity). D. Conspiracy Claim

Gordon has neither pleaded nor otherwise pursued those alternative bases for disability status under the ADA. At best, plaintiff has argued that "Defendants were fully aware of the Plaintiff's disability" (doc. 28, at 7), which is conceptually and logically distinct from a legal theory that defendants are liable because they regarded him as disabled. At any rate, the Complaint does not even hint at a "regarded as" ADA claim, and a plaintiff cannot use his summary judgment brief as a de facto amendment to his complaint. See, e.g., Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) ("A plaintiff may not amend her complaint through argument in a brief opposing summary judgment."); Temploy, Inc. v. National Council on Compensation Ins., 650 F. Supp.2d 1145, 1154 (S.D. Ala. 2009) ("New claims can not be raised in response to summary judgment."). Plaintiff having failed to posture his ADA claims under the "record of impairment" or "regarded as" prongs of the statutory definition, the Court will not endeavor to develop such theories for him on summary judgment.

Simply put, the November 2 letter is not part of plaintiff's claims in this action. To the extent he endeavors to use his summary judgment briefing as a platform to amend the pleadings, such an attempt is improper and impermissible. See, e.g., Gilmour v. Gates, McDonald Co., 382 F.3d 1312, 1315 (11th Cir. 2004) ("A plaintiff may not amend her complaint through argument in a brief opposing summary judgment."); Temploy, Inc. v. National Council on Compensation Ins., 650 F. Supp.2d 1145, 1154 (S.D. Ala. 2009) ("New claims can not be raised in response to summary judgment."). Besides, notwithstanding plaintiff's attempts to take advantage of a writing he knew to be erroneous, the November 2 letter cannot reasonably be viewed as an offer by defendants to forgive Mortensen's 13 missed monthly payments, as well as all associated interest, penalties and fees associated with same, if he would just make a single small payment covering two months that predated the loan's origination.