This is the next in a continuing series of articles reprinted from the manuscript of the author's article published by Westlaw Publishing Co., "Force-placed, Lender-placed Insurance Class Actions: Is the Lender Placement of Insurance Authorized by Law, Or Simply Beyond the Reach of the Courts?", 35 Insurance Litigation Reporter 221 (2013) © 2013 Thomson Reuters. Installments in this series will alternately be presented here and on Insurance Claims and issues Blog. Permission to reprint from the author's manuscript is given by John K. DiMugno, Esquire, Editor-in-Chief of ILR, by Thomson Reuters Westlaw, and by the author.
II. THE SUBSTANTIVE ISSUES OF FORCE-PLACED INSURANCE: SUCCESS OR FAILURE IN STATING CLAIMS.
II. A. The prevailing Federal standard for failure to state a claim upon which relief can be granted under Rule 12(b)(6). As was noted previously, the great majority of cases which have been located in which claims have been alleged as a result of force-placed insurance have been resolved under Federal Rule of Civil Procedure 12(b)(6) for alleged failure to state claims upon which relief can be granted.
Rule 12(b)(6) motions to dismiss are resolved using a two-pronged approach: First, the trial Court must disregard "legal conclusions" and "naked assertions" alleged in the complaint, and second, the Court must examine the claims alleged in the complaint for "facial plausibility".[1] "Facial plausibility" involves the "nub" of the complaint, meaning allegations of fact that are well-pleaded, and not merely speculative.[2]
Further, the allegations of fact pleaded in the putative class action plaintiffs' complaint are often consulted by the District Courts on Rule 12(b)(6) motions as a challenge to the plaintiffs' standing to state claims on behalf of an entire class.[3]
[1] E.g., Montanez v. HSBC Mortgage Corp., 876 F. Supp. 2d 504, 510(E.D. Pa. 2012); Williams v. Wells Fargo Bank, N.A., 2011 WL 4901346 *3 (S.D. Fla. October 14, 2011); see, e.g., Lane v. Wells Fargo Bank N.A., 2013 WL 269133 *3 (N.D. Cal. January 24, 2013).
[2] E.g., Cannon v. Wells Fargo Bank N.A., 2013 WL 132450 *3 (N.D. Cal. January 9, 2013); see, e.g., Cannon v. Wells Fargo Banks, N.A., 2013 WL 764964 *8 (D.D.C. March 1, 2013); Abels v. JPMorgan Chase Bank, N.A., 678 F. Supp. 2d 1273, 1276 (S.D. Fla. 2009).
[3] E.g., Lane v. Wells Fargo Bank N.A., 2013 WL 269133 *4 (N.D. Cal. January 24, 2013); Montanez v. HSBC Mortgage Corp., 876 F. Supp. 2d 504, 512(E.D. Pa. 2012).
End of Part 3; to be continued. Please Read The Disclaimer.