Tag: breach of fiduciary duty

Bankr. E.D.N.C.: In re KGC Homeowners, Inc.- Pleading Requirements for Negligence and Breach of Fiduciary Duty, Economic Loss Doctrine


KGC Homeowners, Inc. (“KGC”) brought suit against William Douglas Management, Inc. (“WDM”) alleging breach of contract, negligence and breach of fiduciary duty. While conceding that the complaint sufficiently alleged a breach of contract, WDM moved to dismiss the negligence and breach of fiduciary duty claim, pursuant to Rule 12(b)(6) and Iqbal/Twombly.

The elements of a negligence claim are:
(1) The Defendant owed a duty to plaintiff;
(2) The Defendant breached the duty by failing to conform to the required standard of conduct,
(3) The breach of duty resulted in injury to the plaintiff; and
(4) An actual injury to the interests of the plaintiff occurred.… Read More

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N.C. S. Ct.: Dallaire v. Bank of America- No Fiduciary Duty between Borrower and Lender


The Dallaire purchased their home in 1998 for $173,660.00. They filed a Chapter 7 bankruptcy in the Middle District of North Carolina, case number 05-53774, on October 13, 2005, and at that time had three mortgages against the property- the first and second mortgages were both held by Bank of America, in the amounts of $138,900 and $25,000, respectively, and a lien for a business loan to BB&T, in the amount of $241,449.37. The Dallaires received a discharge and did not reaffirm any of the three obligations. A year later (at the tail end of the mortgage lending frenzy), the Dallaires refinanced the Bank of America loans, after Bank of America, following the advise of its title agency, mistakenly believed that the BB&T lien had been extinguished.… Read More

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Bankr. M.D.N.C.: Rutledge v. Wells Fargo Bank, N.A.- State Law Claims for Failure Related to HAMP Modification


The Debtor, after various alleged inconsistencies and shenanigans by Wells Fargo in application of her payments and insurance proceeds, as well as failures in the review of her loan modification application, filed bankruptcy and brought suit alleging, among other causes of action, breaches of contract and duties of good faith & fair dealing and fiduciary duty, fraud and constructive fraud, and violations of the North Carolina Unfair and Deceptive Trade Practice Act. Wells Fargo sought dismissal for failing to state a claim. Following Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012), the bankruptcy court examined the treatment of allegations of state law violations arising from failures under federal regulations related to the providing and servicing of mortgages, finding that the cases fell into three categories: 1.… Read More

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NC Court of Appeals: Evans v. Neill- Breach of Fiduciary Duty by Substitute Trustee in Foreclosure


The Debtors granted a Deed of Trust originally to Associates Financial, which was eventually sold or otherwise assigned to Citifinancial.   The Deed of Trust included a legal description of the collateral, but did not include an address.  Debtors later defaulted on a Deed of Trust.  The Substitute Trustee instituted foreclosure proceedings and attempted personal service by Sheriff at three different addresses.  When that failed, the Sheriff posted service at an address that was not for the collateral described in the Deed of Trust.  Unaware of the defects in service, the Clerk of Court allowed the foreclosure to proceed and the collateral was sold to a third party.… Read More

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