Missouri Federal Court Holds That There Is No Private Cause of Action Under HAMP
In Topchian v. JPMorgan Chase Bank, N.A., Case No. 12-0910-CV-W-ODS, 2013 WL 1628525 (W.D. Mo. April 16, 2013), the Western District Court of Missouri granted Defendant, JPMorgan Chase Bank, N.A.'s ("Defendant") motion to dismiss pro se Plaintiff, Samvel Tochian's ("Plaintiff"), Amended Complaint for the alleged failure to provide adequate opportunity to the federal Home Affordable Modification Program ("HAMP") and related claims. See generallyid. The District Court, citing various prior court holdings, held that there is not private right of action for loan modification under HAMP. Id. at 2. While the Court did not address whether or not HAMP preempts all private causes of action or bars all state common law claims, the Court found that Plaintiff's other claims failed as a matter of law as well. To start, the court cited a chain of district court cases which all had previously held that HAMP provides no private cause of action for loan modification. Id. (citing Dugger v. Bank of America/Countrywide Loans, No. 1:10-CV-00076-S-NLJ, 2010 WL 3258383 (E.D.Mo. Aug. 16, 2010); see also Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 559 n. 4 (7th Cir.2012); Miller v. Chase Home Finance, LLC, 677 F.3d 1113, 1116 (11th Cir.2012); Bohnhoff v. Wells Fargo Bank, N.A., 853 F.Supp.2d 849, 853 (D.Minn.2012).; Cox v. Mortgage Electronic Registration System, Inc., 794 F.Supp.2d 1060, 1064 (D.Minn.2011)). The court went on to note that some courts have held that HAMP does not preempt all state law common law claims, but did not address the issue because the Plaintiff's claims failed as a matter of law regardless. See id. With respect to Plaintiff's state law claims, the Court held that the allegations that Plaintiff made related to "systematic errors in the foreclosure," which had been stopped, failed because there is no cause of action for "attempted wrongful foreclosure." Id. at 3. Additionally, the Court held that the Plaintiff failed to state a claim for either negligent infliction of emotion distress or intentional infliction of emotional distress because Plaintiff failed to plead the required elements of a cause of action for either claim. See id.at 2-3. Likewise, the court held that the Plaintiff failed to plead fraud with particularity, and specifically failed to plead the "who, what, when, where, and how" of the fraud. Id. at 4.Finally, the Court dismissed Plaintiff's claim under the Fair Credit Reporting Act ("FCRA") for failure to allege specific facts stating a claim under the FCRA, including but not limited to, Plaintiff's failure to plead allegations Plaintiff notified a credit reporting agency of the defendant of any dispute related to the alleged debt and failure to plead allegations that's the Defendant ever received notice of a dispute from the credit reporting agencies. Id. at 3-4. As a result, any claim Plaintiff attempted to allege under the FCRA failed. For all of the foregoing reasons, the District Court dismissed Plaintiff's Amended Complaint in its entirety, without providing Plaintiff with leave to amend his complaint. See id.at 4. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.
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