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Calon v. Bank of America Corp.

United States District Court, W.D. Missouri, Western Division

June 29, 2015

JOHN CALON, Plaintiff,


FERNANDO J. GAITAN, Jr., District Judge.

Currently pending before the Court is defendant's Motion to Dismiss (Doc. # 16).


On December 9, 2014, plaintiff filed his Complaint asserting five causes of action against defendants Bank of America Corporation ("BAC"), Bank of America Corporation, N.A. ("BANA") and Brian Moynihan (Bank of America's CEO)[1]. The claims asserted against the defendants include: Theft, Fraud, Extortion, Discrimination and Breach of Contract.

Plaintiff states in his Complaint that in October 2001, he obtained a loan through Countrywide Home Loans. As part of the loan package, plaintiff states he purchased a product called the "Easy Rate Interest Rate Reduction Plan." Plaintiff alleges that in mid-December 2007, he notified Countrywide that he was going to exercise his rights under the program. Plaintiff states that Countrywide started the process to lower the interest rate, when in January 2008, Bank of America took over Countrywide. In August 2008, Bank of America notified plaintiff that they did not have to honor this program and have since that time continued to refuse to honor the program.

Plaintiff also alleges that he set up an escrow account to pay the taxes and insurance for his mortgage. In October 2008, plaintiff alleges that BAC began automatically making payouts from the escrow account without plaintiff's authorization. Plaintiff alleges that "in repeated communications with defendants, when Plaintiff spoke of legal action over BAC's unauthorized withdrawals, Plaintiff was threatened/extorted by defendants... that the loan would be accelerated and put into foreclosure, and would ruin plaintiff's credit, should Plaintiff quit making payments to escrow account or take the issue to court, to extort Plaintiff's silence in the matter." (Plaintiff's Complaint, ¶ 12).

Plaintiff also alleges that BAC repeatedly failed to pay the insurance on time. In 2012, plaintiff's insurance company canceled his policy and BAC withheld this information from plaintiff until March 2013. Plaintiff alleges that defendants then replaced his insurance with a lender provided insurance. Plaintiff alleges that defendants over insured the house and as a result have stolen/extorted or otherwise fraudulently acquired thousands of dollars from plaintiff's escrow account. (Plaintiff's Complaint, ¶ 13). Also with regard to insurance, plaintiff states that he discovered in June 2014, that BAC had purchased no insurance for his home and it had been uninsured for the past two years. Plaintiff alleges that BAC through deception has stolen thousands of dollars from plaintiff's escrow account for phony insurance policies which do not exist. Plaintiff alleges that BAC has failed to provide an accounting for plaintiff's missing escrow money. (Plaintiff's Complaint, ¶ 14).

Plaintiff also alleges that the defendants have discriminated against him because of his racial, religious, origin, and disabled status. Plaintiff alleges that the defendants have continually refused to provide plaintiff a copy of the alleged insurance policy or to provide him with information about his loan. Plaintiff also claims that since September 2014, he has been trying to payoff his loan early, using the money left in the escrow account. However, plaintiff asserts that the defendants have refused to release the leftover escrow funds. Additionally he asserts that BAC now claims that he must pay an "early payoff fee" of $5, 000, even though his loan agreement with Countrywide contained no such fee.


To survive a motion to dismiss under 12(b)(6), Aa complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A pleading that merely pleads Alabels and conclusions" or a Aformulaic recitation" of the elements of a cause of action, or Anaked assertions" devoid of Afurther factual enhancement" will not suffice. Id . (quoting Twombly). ADetermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Under Fed.R.Civ.P. 12(b)(6) we must accept the plaintiff's factual allegations as true and grant all reasonable inferences in the plaintiff's favor. Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005).

In Allen v. Bank of America Corp., No. 10-4205 (MJD/JSM), 2011 WL 3837150, (D.Minn. July 22, 2011), the Court stated:

The Court will liberally construe the pleadings of an unrepresented party.... Pro se complaints, however inartfully pleaded are held to less stringent standards than formal pleadings drafted by lawyers.... [I]f the court can reasonably read the pleadings to state a valid claim on which the [plaintiff] could prevail, it should do so despite the [plaintiff's] failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.... The court's liberal construction does not extend to allowing defective and insufficiently pled claims to proceed.... Neither may the courts, in granting the deference owed to pro se parties, assume the role of advocate for the pro se litigant.

Id. at *5 (internal citations and quotations omitted).


A. Defendants Moynihan

Defendants argue that it is improper under Missouri law to sue a corporate officer or a director simply because of their position in an organization. Defendants argue that while Brian Moynihan is listed as a defendant and grouped with the other defendants throughout the Complaint, there are no allegations which are specific to Moynihan himself. In response, plaintiff argues that Moynihan is "claiming, because he is some kind of corporate ultra citizen, that he is responsible to no one but himself, and that someone like the Plaintiff, a pauper, has no right, to dare attempt, to hold him accountable for his actions. Defendant Moynihan as an employee and now CEO and Chairman of the Board of Bank of America, has during his tenure, to varying degrees, overseen, directed, collaborated and worked to cover up the greatest criminal financial disaster in human history...." (Suggestions in Opposition, p. 2). Plaintiff then goes into great detail to list various cases that Countrywide and Bank of America have settled over the past six years. Plaintiff adds that "[a]s a result of ...

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