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Muheljic v. Bank of America, N.A.

United States District Court, M.D. Tennessee, Northeastern Division

November 12, 2014

SUAD MUHELJIC and RIAD MUHELJIC, Plaintiffs,
v.
BANK OF AMERICA, N.A. Defendant

For Suad Muheljic, Riad Muheljic, Plaintiffs: Marla K. Williams, LEAD ATTORNEY, Legal Aid Society of Middle Tennessee and the Cumberlands, Cookeville, TN; Claire Bishop Abely, Legal Aid Society of Middle Tennessee, Nashville, TN; William Bush, Cookeville, TN.

For Bank of America, N.A., Defendant: Harold Frederick Humbracht, Jr., Jessica Jernigan-Johnson, LEAD ATTORNEYS, Bradley Arant Boult Cummings LLP (Nashville Office), Nashville, TN.

MEMORANDUM

KEVIN H. SHARP, UNITED STATES DISTRICT JUDGE.

This action, which arose out of a mortgage foreclosure, was originally filed in the Chancery Court for White County, Tennessee, and removed to this Court. Plaintiffs, brothers Suad and Riad Muheljic, have filed a Motion to Remand (Docket No. 12), to which Defendant Bank of America, N.A. (" BANA") has responded in opposition (Docket No. 19). Defendant has filed a Motion to Dismiss (Docket No. 6), which Plaintiffs oppose (Docket No. 18). The Court does not reach the Motion to Dismiss because it finds that this case was improperly removed and must be remanded.

I.

According to the allegations in the Complaint, Plaintiffs (who are from Bosnia and are not proficient in English) purchased a home located at 876 Luna Road in Sparta, Tennessee on May 29, 2011. After Suad lost his job in 2009, and Riad's paycheck for employment as a truck driver was not enough to cover the bills, Plaintiffs had trouble making their mortgage payments.

Defendant threatened foreclosure in 2010, but the brothers were able to work out an agreement and the foreclosure sale was cancelled. However, in early 2012, Plaintiffs again faced financial difficulties and, while they continued to make payments, they could not pay the entire amount due on the note. Their partial payments were refused and returned.

In October 2012, Plaintiff submitted a hardship letter to BANA in support of a loan modification. Nevertheless, on February 25, 2013, Shapiro & Kirsch, LLP, as substitute trustee, sent Plaintiffs notices of a trustee's sale that was scheduled to occur on March 28, 2013. Plaintiffs claim that, after receipt of those notices, they were assured by Jeff Smith, a BANA Customer Service Representative, that their request for a loan modification was pending, and that the foreclosure sale would be cancelled.

During this same time period, Plaintiffs looked for alternatives to foreclosure and discovered that filing bankruptcy might be an option. They contacted a bankruptcy attorney in April 2013 and learned that a foreclosure sale of their property had already taken place.

On July 3, 2014, Defendant sent a letter to Plaintiffs indicating that Mr. Smith had told them by phone on March 13, 2013, that their application for a loan modification had been denied. That same letter also stated, however, that the bank would review their loan for possible workout options.

The Complaint is in six counts, all based on state law: Count I, Breach of Contract; Count II, Tennessee Consumer Protection Act, (" TCPA"), Tenn. Code Ann. § 47-18-104(b) (12); Count III, Unconscionability; Count IV, Promissory Estoppel; Count V, Negligent Misrepresentation; and Count VI, Equitable Estoppel. Plaintiffs request that they be granted equitable relief in the form of recision of the foreclosure sale that occurred on March 28, 2013. They also seek actual damages under the TCPA, reasonable costs, and attorney's fees.

II.

Defendant removed this action on diversity jurisdiction grounds. There is no dispute that the parties are diverse -- Plaintiffs are Tennessee residents and BANA, a federally chartered national banking association, maintains its offices in North Carolina. See Wachovia Bank v. Schmidt, 546 U.S. 303, 307, 126 S.Ct. 941, 163 L.Ed.2d 797 (2011) (a national bank " is a citizen of the State in which its main office, as set forth in its articles of association, ...


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