Maria Nino v. Flagstar Bank, FSB (In re Nino)

Case Type:
Case Status:
Case No. 18-1503;File Name: 19a0107n.06 (6th Circuit, Mar 06,2019) Not Published
Sixth Circuit upheld District Court's order dismissing consumer's complaint as follows: (i) under Florida Deceptive and Unfair Trade Practices Act (FDUTPA) as it did not apply to the defendant bank,; (ii) under RESPA as the claim was barred by the statute of limitations; and (iii) under Florida contract law as the promise of a trial period plan (TPP) was not supported by consideration. Sixth Circuit also upheld District Court's denial of consumer's motion for leave to amend her complaint (again) for failure to address prior deficiencies.
Procedural context:
Florida resident filed suit in Michigan District Court against the bank that held her mortgage for violations of the FDUTPA, RESPA and Florida contract law over the issues regarding the TPP and a permanent mortgage modification agreement (PMMA). Defendant moved to dismiss and plaintiff amended her complaint. Defendant bank filed a second motion to dismiss and District Court referred it to a magistrate who recommended it be granted. District Court accepted the recommendation and dismissed consumer's amended complaint and denied her her leave to amend her complaint.
Florida consumer defaulted on her mortgage loan from a Michigan bank. Bank filed a foreclosure action. Bank then approved consumer's entry into the TPP. After some time consumer made 3 trial payments. Bank then agreed to a PMMA. After some delay, bank sent consumer the PMMA which she signed and the foreclosure was dismissed. More than 3 years after the PPMA was tendered to the consumer she filed suit in Michigan District Court. Sixth Circuit found that consumer's claims under FDUPTA did not apply to a bank under the terms of the FDUPTA. The RESPA claim had to be asserted within 3 years from the date of the alleged violation. The last qualified written request (QWR) from the consumer was more than 3 year before the suit was filed and at that time the answer to the QWR was due within 60 days. That date was also 3 years before suit was filed. The statute of limitations barred the claim under RESPA. Consumer claimed the TPP was a contract and she had to file bankruptcy due to the TPP. Sixth Circuit found that the bankruptcy filing was her own choice and no consideration was found to support a claim under the alleged contract. Finally, the conduct of the consumer was tainted with undue delay and repeated failure to cure deficiencies. These provided grounds for denial of the motion for leave to amend and the Sixth Circuit found no abuse of discretion. It upheld the District Court's ruling on all grounds.
Clay, McKeague and White, Circuit Judges

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