Wilson v. Eyerbank, N.A. (77 F. Supp. 3d 1202, 2015)

United States District Court for the Southern District of Florida 2015-01-06

Commerce and Trade Crimes and Criminal Procedure

Citations

Full opinion text

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS

BETH BLOOM, District Judge.

THIS CAUSE is before the Court on the Motions to Dismiss Plaintiffs Dwight Wilson, Jesus A. Avelar-Lemus, Jessie Cross and Mattie Cross’ (“Plaintiffs”) Class Action Complaint, ECF No. [1] (the “Complaint”), filed by Defendants Ever-Bank and Everhome Mortgage (together, “EverBank” and EverBank’s “Motion to Dismiss”, ECF No. [32]), and Defendant American Security Insurance Company (“ASIC” and ASIC’s “Motion to Dismiss”, ECF No. [36]), Defendant Standard Guaranty Insurance Company (“SGIC” and SGIC’s “Motion to Dismiss”, ECF No. [37]), and ASIC and SGIC’s separate Motion to Dismiss for lack of subject matter jurisdiction (the “Motion on Jurisdiction”, ECF No. [64]). The Court has reviewed the Motions, all supporting and opposing filings, and the record in this case; has had the benefit of oral argument by the parties; and is otherwise fully advised as to the premises. For the reasons set forth below, the Court in part grants and in part denies the Motions.

I. BACKGROUND

This case involves allegations that Defendants entered into an exclusive and collusive relationship to manipulate the force-placed insurance market and artificially inflate the amounts charged to mortgage borrowers for force-placed insurance premiums.

Plaintiff Dwight Wilson took a mortgage loan from Coral Gables Federal Savings and Loan Association in September, 1994 secured by a mortgage on real property in North Palm Beach, Florida. Compl. ¶ 47. In 2001, Wilson’s mortgage was refinanced with Community Savings, F.A. Id. Wilson’s mortgage was subsequently acquired by EverBank. Id. EverBank was thereafter responsible for the servicing of Wilson’s mortgage. Id. Wilson had voluntary insurance coverage, which lapsed on April 25, 2013. Id. ¶ 49. Wilson subsequently obtained voluntary coverage with an effective date of May 15, 2013. Id. ¶ 50. Due to the lapse in coverage, EverBank purchased an annual force-placed hazard insurance policy from ASIC and placed it on Wilson’s home. Id. ¶ 51. The annual cost of the force-placed policy was approximately $13,000 and provided less coverage than Wilson’s prior policy. Id. ¶ 52. Ev-erBank created an escrow account for Wilson with a debit for the approximately $13,000 in force-placed insurance charges. Id. ¶ 53. Wilson’s voluntary insurance coverage again lapsed in December 2013; Wilson again secured coverage in January 2014. Id. ¶¶ 54-55. EverBank refunded portions of the approximately $13,000 first charged to Wilson, but charged Wilson over $700 for a less than two-month period. Id. ¶ 56.

Plaintiff Jesus A. Avelar-Lemus took a mortgage loan from Opteum Financial Services, LLC, on June 24, 2005, secured by a mortgage on real property in Westbury, New York. Id. ¶ 60. Subsequently and at all times relevant to the Complaint, Ave-lar-Lemus’ mortgage loan was owned and/or serviced by EverBank. Id. Until sometime in 2010, Avelar-Lemus had paid an annual premium of between approximately $1,845 and $2,345.08 for homeowner’s insurance coverage obtained in the open market. Id. ¶ 62. By letter dated July 16, 2010, the Everhome Defendants notified Avelar-Lemus of a lapse in his homeowner’s coverage and that it already had acquired an insurance policy from ASIC for retroactive coverage on Avelar-Lemu’s property which had commenced on June 24, 2010. Id. ¶ 63. This premium for this policy was $5,248.00, which Ever-Bank charged to Avelar-Lemus’s escrow account. Id. EverBank informed Avelar-Lemus that “[t]he premium has been charged to your escrow account and your payment will be adjusted appropriately.” Id. The letter dated July 16, 2010, also disclosed that “an affiliate of [EverBank] may receive a commission on the premium charged.” Id. By letter dated June 17, 2011, EverBank notified Avelar-Lemus that it was renewing the force placed policy with ASIC for another year, effective June 24, 2011, and that the annual premium was $5,248.00. Id. ¶ 64. This letter also indicated EverBank may receive “commission” on the premium charged. Id. By letter dated July 3, 2013, EverBank notified Avelar-Lemus that they had renewed the lender-placed hazard insurance policy with ASIC on his property for another year, and that the policy effective date was retroactive to June 24, 2013. Id. ¶ 66. The annual premium on this policy renewal was $4,563.00. Id.

Plaintiffs Jessie and Mattie Cross obtained a mortgage loan from CMSC Mortgage Company secured by a mortgage on real property in East St. Louis, Illinois. Id. ¶ 68. Subsequently and at all times relevant to the Complaint, the Crosses’ mortgage loan was owned and/or serviced by EverBank. Id. The Crosses’ voluntary insurance coverage lapsed in October 2012. Id. ¶ 68. EverBank subsequently force-placed an insurance policy from SGIC on the Crosses property. Id. ¶71. Ever-Bank later renewed that policy. Id. ¶ 72. EverBank charged the premium amounts to the Crosses. Id. The annual amount charged to the Crosses for the force-placed policy was approximately $1,600. Id. ¶ 73.

Each Plaintiffs’ mortgage agreement specifically requires the borrower to maintain hazard, wind and (for property located in a flood hazard area) flood insurance coverage on the mortgaged property, and explicitly permits the lender to obtain force-placed coverage and charge the premiums to the borrower rather than declare the borrow in default on its obligation to maintain insurance coverage. Id. ¶ 28. The lender is also authorized to force-place the coverage retroactively. Id. ¶ 32. Once a lapse in coverage was identified, ASIC or SGIC sent notice to the borrower, on letterhead identifying them with the lender or servicer, that insurance would be purchased and force-placed if the borrower did not continue his or her required voluntary coverage. Id. ¶ 31. If the lapse continued, the insurer then notified the borrower that insurance was being force-placed at his or her expense. Id. After coverage was forced-placed on the property, EverBank paid the insurer and charged the borrower for the payment, which was either deducted from the borrower’s mortgage escrow account or added to the balance of the borrower’s loan. Id. ¶ 33.

Plaintiffs readily admit that “[p]ermit-ting a lender to forcibly place insurance on a mortgaged property and charge the borrower the full cost of the premium is neither a new concept nor a term undisclosed to borrowers in mortgage agreements.” Id. ¶ 28. However,' they allege that unknown to the borrowers and not disclosed in the mortgage agreements is that Ever-Bank maintained an exclusive relationship with ASIC and SGIC to manipulate the force-placed insurance market and artificially inflate the amounts they charge to borrowers for force-placed insurance premiums. Id. ¶ 29. Part of the fees charged to Plaintiffs as force-placed insurance premiums, they allege, were kickbacks from ASIC and SGIC to EverBank disguised as “commissions” or “expense reimbursements,” or inflated costs which covered the cost of discounted services. Id.

Plaintiffs describe the “scheme” as follows: EverBank purchases master insurance policies that cover an entire portfolio of mortgage loans. Id. ¶ 31. The insurer — here, ASIC or SGIC — then monitors the portfolio»of mortgages to identify a borrower’s insurance lapse. Id. When the insurer or the lender determines that a borrower has failed to maintain the required coverage, it begins a notification process to urge the borrower to adhere to its obligation to maintain coverage. Id. If a lapse continues, the insurer notifies the borrower that insurance is being force-placed at his or her expense. Id. The insurer then places its own insurance on the property securing the mortgage loan. Id. No separate, individualized underwriting takes place for the force-placed coverage. Id. ¶ 32. Insurance is automatically placed on the property and the premium charged to the borrower. Id. That is, EverBank pays the insurer and then charges the borrower for the payment. Id. ¶ 33.

Then, the insurer “kicks-back” a set percentage of that payment to EverBank as a “commission.” Id. ¶ 34. No bona fide services are performed or actual costs incurred by EverBank for the return payment. Id. ¶ 35. That is, no work is ever done by EverBank to procure insurance for any particular borrower because the coverage comes through the master or umbrella policy already in place. Id. ¶ 36. As a result, no commission or compensation is “earned” and EverBank does not incur any costs in relation to the force-placement of insurance for any particular borrower. Id. The premiums paid by the borrowers are, therefore, inflated to account for the “kickbacks” or “unearned commissions” returned to EverBank. Id. ¶ 37. Or, EverBank effectively pays a reduced amount for the force-placed insurance policy but does not pass these savings on to its borrowers. Id.

Plaintiffs also allege that EverBank and ASIO and SGIC entered into agreements for ASIC or SGIC to provide servicing activities on their entire loan portfolio at below cost. Id. ¶ 38. The servicing costs are added into the force-placed premiums which are then passed on to the borrower. Id. However, because insurance-lapsed mortgaged property comprises only one to two percent of the lenders’ total mortgage portfolio, the borrowers who pay the charges from the lenders unfairly bear the entire cost to service the entire loan portfolio. Id. Thus, the small percentage of borrowers who are charged for force-placed insurance shoulder the costs of monitoring EverBank’s entire loan portfolio, effectively resulting in an additional kickback. Id. ¶ 39.

Finally, Plaintiffs allege that ASIC and SGIC entered into “riskless captive reinsurance arrangements” with EverBank to “reinsure” the property insurance force-placed on borrowers. Id. ¶ 40. The reinsurance agreement provides that the insurer will return to- EverBank significant percentages of the premiums charged borrowers by way of ceded reinsurance premiums to their affiliates or subsidiaries. Id. ¶41. The ceded premiums, Plaintiffs allege, amount to another kickback because no real risk was assumed. Id.

Plaintiffs seek to recover the excess amounts charged to them beyond the true cost of the legitimately force-placed insurance coverage. Id. ¶ 46. Plaintiffs assert their claims on behalf of a purported nationwide class, as well as Florida and New York subclasses, of borrowers who were charged for a force-placed hazard insurance policy placed on property through EverBank. Id. ¶ 76.

Plaintiffs’ Complaint asserts eleven causes of action: (I) breach of contract against EverBank for assessing costs which were not costs of insurance coverage; (II) breach of the covenant of good faith and fair dealing regarding Ever-Bank’s exercise of discretion to choose and place insurance coverage; (III) unjust enrichment against EverBank; (IV) unjust enrichment against ASIC and SGIC; (V) violation by EverBank, alleged by Wilson, of Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. (“FDUTPA”); (VI) violation by EverBank of the Truth In Lending Act, 15 U.S.C. § 1601' et seq. (“TILA”); (VII) tortious interference with a business relationship against ASIC and SGIC; (VIII) breach of fiduciary duty against EverBank; (IX) violation of section 1962(c) of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-1968 (“RICO”) against all Defendants; (X) violation of section 1962(d) of RICO against all Defendants; and (XI) violation by all Defendants, alleged by Avelar-Lemus, of the New York Deceptive Practices Act, N.Y. G.B.L. §■ 349 (“NYDPA”).

II. DISCUSSION

Defendants seek dismissal of the Complaint for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). The Motions center on EverBank’s force-placement of insurance on Plaintiffs’ property which secured their mortgage loans due to Plaintiffs’ admitted failure to obtain their own coverage, and the propriety of the costs agreed to between the Defendants and charged by ASIC and SGIC to EverBank and from EverBank to Plaintiffs for the force-placed insurance coverage.

A. Standard for Dismissal for Failure to State a Claim

A pleading in a civil action must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy the Rule 8 pleading requirements, a complaint must provide the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). While a complaint “does not need detailed factual allegations,” it must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining that the Rule 8(a)(2) pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “ ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (alteration in original)). The Supreme Court has emphasized that “[t]o survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); see also Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir.2010).

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiffs allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir.2012); Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir.2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLCy 608 F.Supp.2d 1349, 1353 (S.D.Fla.2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, but may also consider documents referred to in the complaint that are central to the claim and whose authenticity is undisputed. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir.2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir.2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiffs claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.2002)). While the court is required to accept as true all allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir.2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

B. EverBank’s Motion to Dismiss

1. Everhome Is Not a Proper Party

Everhome Mortgage (“Everhome”) is a division of EverBank. See ECF No. [32-4] Exhs. R-S (documenting merger of Everhome into EverBank); ECF Nos. [32-2], [32-3] Exhs. B-E, [¶] (letters to Plaintiffs identifying Everhome as a division of EverBank). Plaintiffs conceded this at oral argument on the Motions. A corporate division is not a separate legal entity that is capable of being sued. See, e.g., In re Checking Account Overdraft Litig., 883 F.Supp.2d 1244, 1249-50 (S.D.Fla.2012) (dismissing unincorporated division as improper entity to be sued); see also W. Beef, Inc. v. Compton Inv. Co., 611 F.2d 587, 591 (5th Cir.1980). As such, Plaintiffs cannot state a viable claim against Everhome, and all counts against Everhome are dismissed.

2. Plaintiffs State a Claim for Breach of Contract Against EverBank (Count I)

EverBank contends that nothing about the lender-placed insurance practices complained of by Plaintiffs constitutes a breach of Plaintiffs’ mortgage agreements. EverBank highlights that Plaintiffs failed to maintain the required insurance, and that their mortgage agreements expressly authorized the lender to place insurance and charge the borrowers for that insurance. It stresses that nothing in Plaintiffs’ mortgages prohibit the lender from collecting a commission or other compensation in connection with placing the insurance, and passing that fee along to the borrower as part of the force-placed insurance charges. Therefore, it argues, whether EverBank actually charged Plaintiffs more than the net cost of the lender-places insurance policies is not relevant and does not support a claim for breach of contract.

EverBank relies heavily on Cohen v. American Security Insurance Co., 735 F.3d 601 (7th Cir.2013) and Feaz v. Wells Fargo Bank, N.A., 745 F.3d 1098 (11th Cir.2014). In Cohen, the Seventh Circuit affirmed dismissal of breach of contract claims based on allegations that the lender charged kickbacks in connection with, and retroactively placed, lender-purchased insurance policies. 735 F.3d at 612-13. The court explained that merely labelling a commission a “kickback” was not meaningful — “[t]he defining characteristic of a kickback is divided loyalties” — and that nothing in the mortgages at issue prevented the mortgagee from collecting a commission in connection with protecting its own security interest by force-placing hazard insurance. Id. at 611-12. Feaz, which addressed Alabama force-placed flood insurance claims, relied on Cohen in relation to the plaintiffs breach of fiduciary duty claims. As in Cohen, the Eleventh Circuit explained that “simply calling a commission a kickback doesn’t make it one,” and that because the plaintiff had merely renamed compensation, which is by definition earned, a kickback, its claim was insufficient. 745 F.3d at 1110-11.

Several courts in this District have recently distinguished Cohen and Feaz based both on the underlying law at issue and on better pled allegations strikingly similar to those pled by Plaintiffs here. See, e.g., Persaud v. Bank of Am., N. A., 2014 WL 4260853, at *8-9 (S.D.Fla. Aug. 28, 2014) (distinguishing Cohen and Feaz based on plaintiffs well-pled allegations that the manner in which lenders force-placed insurance and makeup of charges to plaintiffs were improper); Jackson v. U.S. Bank, N.A., 44 F.Supp.3d 1210, 1214, 2014 WL 4179867, at *2 (S.D.Fla.2014) (finding Cohen and Feaz inapposite where plaintiffs pled that commissions charged to borrowers were in fact unearned and that lenders misled borrowers by representing to them that the amounts were payments for work that had been performed); Hamilton v. Suntrust Mortgage Inc., 6 F.Supp.3d 1300, 1310-11 (S.D.Fla.2014) (rejecting application of Cohen and Feaz, highlighting that in Cohen, the lender specified the dollar amount of the higher insurance coverage, and that Feaz dealt with the particularities of Alabama flood insurance).

Here, Plaintiffs do not challenge Ever-Bank’s right to force insurance coverage in the event of a lapse in voluntary and required coverage or the sufficiency of the coverage provided. Nor do Plaintiffs contend that the forced coverage is too expensive per se. Rather, they allege that Ev-erBank charged Plaintiffs for costs not properly chargeable to the borrower under the terms of their mortgage agreements in the amounts passed on to them for force-placed coverage. Plaintiffs allege that the same portion of the force-placed insurance costs passed on to EverBank’s borrowers included costs beyond the cost of coverage that were not reasonably related to Ever-Bank’s loan servicing — unearned commissions that in actuality represent amounts kicked back from the insurers to Ever-Bank, costs truly associated with insuring an entire loan portfolio and not the individual mortgaged property, and risk-free reinsurance costs. Plaintiffs allege that those charges were not permitted under their mortgage agreements and that Ever-Bank’s actions, therefore, constitute a material breach. Those allegations state a material breach of Plaintiffs’ mortgage agreements. See Merle Wood & Assocs., Inc. v. Trinity Yachts, LLC, 857 F.Supp.2d 1294, 1301 (S.D.Fla.2012) (To prevail on a claim for breach of contract, a plaintiff must establish “(1) the existence of a contract; (2) a material breach of that contract; and (3) damages resulting from the breach.”)- As a result, their claims for breach of contract survive a motion to dismiss.

Plaintiffs are forewarned, however, that the allegations and facts presented in their Complaint may not suffice at later stages in this litigation. As EverBank noted at the hearing on these Motions, this is not an indictment of the lender-placed insurance industry, nor does this action involve the banks and insurers sued elsewhere. Articles from Businessweek or American Banker won’t be enough to hold liable the specific defendants named here. Plaintiffs must demonstrate that EverBank did what they allege with respect to the parties’ rights and obligations under the various mortgage agreements — that the force-placed coverage costs were, in fact, inflated and not reasonably related to the cost of protecting their collateral; that the commissions portion of that price was, in fact, unearned and passed back from the insurers to EverBank; and that the costs Plaintiffs were forced to pay and the manner in which EverBank arrived at those amounts were, in fact, not adequately disclosed.

3. Plaintiffs State a Claim for Breach of the Implied Covenant of Good Faith and Fair Dealing Against Ev-erBank (Count II)

Under Florida law, every contract contains an implied covenant of good faith and fair dealing which protects “the reasonable expectations of the contracting parties in light of their express agreement.” QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass’n, Inc., 94 So.3d 541, 548 (Fla.2012) (quoting Barnes v. Burger King Corp., 932 F.Supp. 1420, 1438 (S.D.Fla.1996)); Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1151 (11th Cir.2005). The covenant is implied as a gap-filling default rule where the terms of the contract vest a party with substantial discretion, requiring that party to act in a commercially reasonable manner and limiting its ability to act capriciously to contravene the reasonable expectations of the contract counterparty. See Karp v. Bank of Am., N.A., 2013 WL 1121256, at *3 (M.D.Fla. Mar. 18, 2013); Martorella v. Deutsche Bank Nat. Trust Co., 931 F.Supp.2d 1218, 1225 (S.D.Fla.2013).

“A breach of the implied covenant of good faith and fair dealing is not an independent cause of action, but attaches to the performance of a specific contractual obligation.” Centurion, 420 F.3d at 1151. The implied duty of good faith must, therefore, “relate to the performance of an express term of the contract ... [and] cannot be used to vary the terms of an express contract.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1316 (11th Cir.1999) (quoting Hospital Corp. of America v. Florida Med. Ctr., Inc., 710 So.2d 573, 575 (Fla. 4th DCA 1998) and City of Riviera Beach v. John’s Towing, 691 So.2d 519, 521 (Fla. 4th DCA 1997)). “As long as the implied covenant does not vary the express terms of the contract, the failure to perform a discretionary act in good faith may be a breach of the implied covenant of good faith and fair dealing.” Abels v. JPMorgan Chase Bank, N.A., 678 F.Supp.2d 1273, 1278 (S.D.Fla.2009) (citing Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097-98 (Fla. 1st DCA 1999)). “Where the terms of the contract afford a party substantial discretion to promote the party’s self-interest, the duty to act in good faith nevertheless limits that party’s ability to act capriciously to contravene the reasonable expectations of the other party.” Wallace v. NCL (Bahamas) Ltd., 891 F.Supp.2d 1348, 1352 (S.D.Fla.2012).

Similarly, New York law implies a covenant of good faith and fair dealing “pursuant to which neither party to a contract shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 407 (2d Cir.2006) (citation omitted). The covenant “can only impose an obligation consistent with other mutually agreed upon térms in the contract. It does not add to the contract a substantive provision not included by the parties.” Broder v. Cablevision Sys. Corp., 418 F.3d 187, 198-99 (2d Cir.2005). While “New York law does not ... recognize a separate cause of action for breach of the implied covenant of good faith and a breach of contract on the same facts,” Fellows v. CitiMortgage, Inc., 710 F.Supp.2d 385, 407 (S.D.N.Y.2010), “alternative pleading of contradictory claims is explicitly allowed under the Federal Rules of Civil Procedure.” Eaves v. Designs for Fin., Inc., 785 F.Supp.2d 229, 260 n. 23 (S.D.N.Y.2011).

By contrast, Illinois law does not provide an independent cause of action for breach of the implied covenant of good faith and fair dealing. See APS Sports-Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 628 (7th Cir.2002). However, plaintiffs are permitted to subsume a claim for breach of the implied covenant within a breach of contract claim. See, e.g., Stuart Park Assocs. Ltd. P’ship v. Ameritech Pension Trust, 846 F.Supp. 701, 713-14 (N.D.Ill.1994).

Plaintiffs allege that an express contract term was violated. See section II.B.2, supra. This substantiates their claim for breach of the implied covenant of good faith and fair dealing. Further, Plaintiffs’ claim for breach of the implied covenant is not duplicative of their breach of contract claim. The former focuses on EverBank’s charging Plaintiffs for costs beyond the cost of coverage and not permitted under their mortgage agreements, while the latter focuses on Ever-Bank’s exercise of the discretion afforded it under Plaintiffs’ mortgage agreements to select and impose insurance coverage. Therefore, Plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing survives. The Court interprets the Crosses claim for breach of the implied covenant as a claim for breach of contract.

4. Avelar-Lemus Fails to Allege That He Provided EverBank With Pre-Suit Notice (Counts I and II)

Avelar-Lemus’ mortgage agreement provides that he may not

commence, join or be joined to any court action (as either an individual or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument ... unless the other [party] is notified (in the manner required under Section 15 of this Security Instrument) of the unfulfilled obligation and given a reasonable time to take corrective action.

ECF No. [32-3] Exh. K. Plaintiffs do not allege that Avelar-Lemus provided pre-suit notice to EverBank, and provide no justification for that failure. Accordingly, his breach of contract and breach of the implied covenant of good faith and fair dealing claims must be dismissed without prejudice. See, e.g., Gibson v. Chase Home Fin., LLC, 2012 WL 1094323, at *2 (M.D.Fla. Apr. 2, 2012) (noting that pre-suit notice is intended to facilitate explanation and resolution without the expense of litigation). Under the circumstances here, one day less than the time provided by the Court to Plaintiffs to amend their Complaint will constitute a reasonable time within which EverBank may take corrective action upon receiving pre-suit notice from Avelar-Lemus.

5. Plaintiffs Fail to State a Claim for Unjust Enrichment Against EverBank (Count III)

“The elements of an unjust enrichment claim are a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.” Florida Power Corp. v. City of Winter Park, 887 So.2d 1237, 1242 n. 4 (Fla.2004) (quoting Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So.2d 205, 207 (Fla. 2d DCA 1995)). “It is well settled that the law will not imply a contract where an express contract exists concerning the same subject matter.” Kovtan v. Frederiksen, 449 So.2d 1, 1 (Fla. 2d DCA 1984). Therefore, an “unjust enrichment claim [is] precluded by the existence of an express contract between the parties concerning the same subject matter.” Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So.2d 696, 697 (Fla. 1st DCA 2008); see also 1021018 Alberta Ltd. v. Netpaying, Inc., 2011 WL 1103635, at *5 (M.D.Fla. March 24, 2011) (Florida courts have held that “a plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter.”); Zarrella v. Pac. Life Ins. Co., 755 F.Supp.2d 1218, 1227 (S.D.Fla.2010) (same).

A party may plead in the alternative for relief under an express contract and for unjust enrichment. See Thunder-Wave, Inc. v. Carnival Corp., 954 F.Supp. 1562, 1566 (S.D.Fla.1997) (citing Hazen v. Cobb-Vaughan Motor Co., 96 Fla. 151, 117 So. 853, 857-58 (1928)). “But unjust enrichment may only be pleaded in the alternative where one of the parties asserts that the contract governing the dispute is invalid.” Williams v. Wells Fargo Bank N.A., 2011 WL 4368980, at *11 (S.D.Fla. Sept. 19, 2011) (citing Zarrella, 755 F.Supp.2d at 1227-28 and In re Managed Care Litig., 185 F.Supp.2d 1310, 1337-38 (S.D.Fla.2002)).

Plaintiffs cannot maintain their unjust enrichment claim under the facts they allege here because their mortgage contracts, the authenticity of which Plaintiffs cannot contest, do in fact govern the subject of Plaintiffs’ dispute. See State Farm Mut. Auto. Ins. Co. v. Altamonte Springs Diagnostic Imaging, Inc., 2011 WL 6450769, at *5 (M.D.Fla. Dec. 21, 2011) (“[U]pon a showing that an express contract exists between the parties the unjust enrichment ... count fails.”) (quoting State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc., 427 Fed.Appx. 714, 722 (11th Cir.2011)); cf. Williams, 2011 WL 4368980 at *11 (sustaining unjust enrichment claim where plaintiffs contested the validity of their mortgage contracts); Persaud, 2014 WL 4260853 at *14 (claim could be stated in the alternative where, by challenging successor liability, defendants challenged whether mortgage agreements governed the parties’ relationship).

While Plaintiffs are entitled to plead in the alternative, they cannot dispute the authenticity of documents they submit to the Court for consideration and which are fundamental to their claims. See Degutis v. Fin. Freedom, LLC, 978 F.Supp.2d 1243, 1266 (M.D.Fla.2013) (“In this case, it is undisputed by Plaintiff that an express mortgage contracts exists between Plaintiff and the Defendants. Even though Plaintiff argues that it is alleging the unjust enrichment claim in the alternative, ... Plaintiff is not alleging that the contract is invalid. [Because] Plaintiff does not contest that there was a valid mortgage contract between the parties[,] Plaintiffs claim for unjust enrichment fails.”); Cent. Magnetic Imaging Open MRI of Plantation, Ltd. v. State Farm Mut. Auto. Ins. Co., 789 F.Supp.2d 1311, 1317 (S.D.Fla.2011) (“As there is a valid express contract that no party challenges, Plaintiff may not recover under unjust enrichment, and may not assert it as an alternative claim under Federal Rule 18.”). Plaintiffs’ unjust enrichment claim against Ever-Bank, therefore, fails.

6. Plaintiffs Cannot Maintain a FDUTPA Claim Against EverBank (Count V)

By its express terms, FDUTPA “does not apply to ... [b]anks or savings and loan associations regulated by federal agencies.” See Fla. Stat. § 501.212(4)(c); Sovereign Bonds Exch. LLC v. Fed. Republic of Germany, 899 F.Supp.2d 1304, 1315-16 (S.D.Fla.2010). Plaintiffs bring their FDUTPA claim against Everhome only. However, Everhome is not a separate legal entity, but rather is a division of EverBank, and is not a proper party to this action. See section II.B.l; supra. Plaintiffs do not dispute that EverBank is a federal savings association that is regulated by the federal government’s Office of the Comptroller of the Currency and have further admitted at oral argument that they have not stated a viable FDUTPA claim against EverBank, standing alone. EverBank thus cannot be subject to the FDUTPA, and Plaintiffs’ FDUTPA claim must be dismissed, with prejudice. See George v. Wells Fargo Bank, N.A., 2014 WL 61487, at *5 (S.D.Fla. Jan. 8, 2014) (dismissing FDUTPA claim against national bank).

7. Plaintiffs Have Sufficiently Alleged TILA Claims (Count VI)

EverBank argues that Plaintiffs’ TILA claim should be dismissed because no new disclosures were required under TILA with respect to the force-placed insurance charges complained of here. It further urges dismissal of Avelar-Lemus and the Cross claims based on TILA’s one-year statute of limitations.

The fundamental purpose of TILA is to provide borrowers with clear and accurate disclosures of loan terms. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998); 12 C.F.R. § 226.17(c). With respect to residential mortgages, TILA aims “to assure that consumers are offered and receive residential mortgage loans on terms ... that are understandable and not unfair, deceptive or abusive.” 15 U.S.C. § 1639b(a)(2). Additionally, it ensures that “a creditor may not change the terms of the extension of credit if such changes make the disclosures inaccurate, unless new disclosures are provided.” Id. § 1639(a)(2)(A). To meet its purposes, TILA “requires a creditor to disclose information relating to such things as finance charges, annual percentage rates of interest, and borrowers’ rights ...' and it prescribes civil liability for any creditor who fails to do so.” Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 54, 125 S.Ct. 460, 160 L.Ed.2d 389 (2004).

In particular, 15 U.S.C. § 1638 and 12 C.F.R. § 226.18, which govern closed-end transactions such as residential home loans, require that the creditor must disclose the credit’s “finance charge” before “the credit is extended.” EverBank argues that the lender-placed insurance charges are not “finance charges” requiring new disclosures under TILA for two reasons: (1) TILA’s regulations expressly exclude from “finance charges” “[p]remi-urns for insurance against loss or damage to property” when the “insurance coverage may be obtained from a person of the consumer’s choice, and this fact is disclosed,” and, “[i]f the coverage is obtained from or through the creditor, the premium for the initial term of insurance coverage [is] disclosed.” 12 C.F.R. § 226.4(d)(2). (2) Property insurance is only a “finance charge” and thus subject to disclosure where it is “written in connection with a credit transaction.” 12 C.F.R. § 226.4(b)(8). The Official Staff Commentary to section 226.4(b)(8) states that insurance placed “after consummation in closed-end credit transactions ... is not considered ‘written in connection with’ the credit transaction if the insurance is written because of the consumer’s default (for example, by failing to obtain or maintain required property insurance).”

EverBank’s arguments for dismissing Plaintiffs’ TILA claim fails for substantially the same reason Plaintiffs’ breach of contract claim survives: Plaintiffs allege that the amounts charged by EverBarik were not attributable to lender-placed insurance costs authorized under Plaintiffs mortgage agreements, but rather, were improperly assessed kickbacks for unearned and not-performed services. Taking Plaintiffs allegations as true, neither of the exceptions to TILA’s disclosure requirements applies here to immunize EverBank. See, e.g., Jackson, 44 F.Supp.3d at 1219, 2014 WL 4179867 at *6 (“Kickbacks are not properly classified as ‘premiums for insurance’ under the exclusion cited.”); Casey v. Citibank, N.A., 915 F.Supp.2d 255, 266 (N.D.N.Y.2013) (“[Numerous courts have persuasively held that when a lender force-places insurance not contemplated in the mortgage agreement, the associated premiums are not exempt from disclosure under TILA.”); Morris v. Wells Fargo Bank N.A., 2012 WL 3929805, at *14 (W.D.Pa. Sept. 7, 2012) (substantiating TILA claim, explaining that insurance that is “force-placed without authorization and in violation of the mortgage agreement ... is no longer exempt from disclosure as part of the finance charge under 12 C.F.R. § 226.4(d)(2)© and must be disclosed in accordance with 12 C.F.R. § 226.4(d)(2)(ii)”). Of course, like their breach of contract claim, Plaintiffs TILA claim will ultimately fail or flourish based on whether Plaintiffs can establish the facts they allege.

Claims under TILA are subject to a one-year statute of limitations. However, “the statute of limitations in TILA is subject to equitable tolling.” Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 708 (11th Cir.1998). “The doctrine of equitable tolling ‘saves’ a TILA claim where a plaintiff has ‘been prevented from [bringing suit] due to inequitable circumstances.’ ” Jackson, 44 F.Supp.3d at 1219, 2014 WL 4179867, at *6 (quoting Ellis, 160 F.3d at 706-08). Dismissal of a TILA claim at the pleading stage is appropriate ©nly “if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980). Here, Plaintiffs allege that Ever-Bank did not disclose the composition of its lender-forced insurance charges to include unearned “kickbacks,” and that Ev-erBank actively concealed its “scheme” to inflate those force-placed insurance charges. Compl. ¶¶ 139-141. Accordingly, Plaintiffs may maintain their TILA claims at this stage based on their allegations in the Complaint which support equitable tolling. See Jackson, 44 F.Supp.3d at 1219, 2014 WL 4179867, at *6 (upholding plaintiffs’ TILA claims, “mindful that ‘as a remedial statute, TILA must be construed liberally in favor of the consumer’ ”) (quoting Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060, 1065 (11th Cir.2004)); cf. Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 & 1288 n. 13 (11th Cir.2005) (“Dismissal under Federal Rule of Civil Procedure 12(b)(6) on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred. At the motion-to-dismiss stage, a complaint may be dismissed on the basis of a statute-of-limitations defense only if it appears beyond a doubt that Plaintiffs can prove no set of facts that toll the statute.”) (citations omitted).

8. Plaintiffs’ Fiduciary Duty Claim is Insufficiently Pleaded (Count VIII)

Plaintiffs allege that EverBank owes Plaintiffs a fiduciary duty because it held their funds in an escrow account, in part for the purpose of paying insurance premiums, and for which EverBank “receive[d] a greater economic benefit ... than [it] would from a typical escrow transaction.” Compl. ¶ 152. Plaintiffs further allege that EverBank violated its fiduciary duties by “not acting in borrowers’ best interests when it profited from force placed insurance policies” purchased with escrowed funds and by faffing to disclose the “kickback scheme” to Plaintiffs. Compl. at ¶¶ 152-53. Here, Plaintiffs fail to allege with particularity any facts distinguishing their interactions with EverBank from the typical lender-borrower relationship that would give rise to a fiduciary duty capable of being breached.

The elements of a breach of fiduciary duty claim are: “the existence of a fiduciary duty and the breach of that duty such that it is the proximate cause of the plaintiffs damages.” Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002); see also Pension Committee of University of Montreal Pension Plan v. Banc of America Sec., LLC, 591 F.Supp.2d 586, 589-90 (S.D.N.Y.2008) (“The elements of a claim for breach of fiduciary duty under New York law are breach by a fiduciary, a knowing participation in the breach, and damages.”) (quotation omitted); McMahan v. Deutsche Bank AG, 938 F.Supp.2d 795, 809 (N.D.Ill. 2013) (“Under Illinois law, a breach of fiduciary duty claim has three elements: (1) that a fiduciary duty exists, (2) that the fiduciary duty was breached, and (3) that such breach proximately caused the injury of which the plaintiff complains.”) (quotation omitted).

Generally, an arms-length lender-borrower relationship implies no fiduciary duties from the lender to the borrower. See Persaud, 2014 WL 4260853 at *12 (“[A] lender generally does not owe a fiduciary duty to a borrower under Florida law”) (citing Jaffe v. Bank of Am., N.A., 395 Fed.Appx. 583, 590 (11th Cir.2010) and Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla. 3d DCA 1994)); Sussman v. Weintraub, 2007 WL 908280, at *4 (S.D.Fla. Mar. 22, 2007) (Florida courts have recognized that “generally, the relationship between a bank and its borrower is that of creditor to debtor, in which parties engage in arms-length transactions, and the bank owes no fiduciary responsibilities.”); Graham v. Midland Mortg. Co., 406 F.Supp.2d 948, 953 (N.D.Ill.2005) (“Under Illinois law, ‘[a] mortgagor-mortgagee relationship does not create a fiduciary relationship as a matter of law.’ ”); Dobroshi v. Bank of Am., N.A., 65 A.D.3d 882, 886 N.Y.S.2d 106, 109 (1st Dept.2009) (“[A]n arm’s length borrower-lender relationship is not of a confidential or fiduciary nature.”).

Special circumstances may give rise to a fiduciary duty, “includ[ing] where the lender (1) takes on extra services for a customer, (2) receives any greater economic benefit than from a typical transaction, or (3) exercises extensive control.” Mahdavieh v. Suntrust Mort gage, Inc., 2014 WL 1365425, at *5 (S.D.Fla. Apr. 7, 2014) (quoting Building Educ. Corp. v. Ocean Bank, 982 So.2d 37, 41 (Fla. 3d DCA 2008)). See also Graham, 406 F.Supp.2d at 953 (under Illinois law, “in some circumstances, a contractual relationship [can turn] into a fiduciary relationship [when] one of the parties places great trust in and relies heavily on the judgment of the other party”); U.S. Bank Nat. Ass’n v. Ables & Hall Builders, 696 F.Supp.2d 428, 442 (S.D.N.Y.2010) (“A lender-borrower relationship may give rise to fiduciary duty under New York law where there exists ‘a confidence reposed which invests the person trusted with an advantage in treating with the person so confiding, or an assumption of control and responsibility.’ ”) (citing Mfrs. Hanover Trust Co. v. Yanakas, 7 F.3d 310, 318 (2d Cir.1993)). “[F]acts supporting a claim of fiduciary duty must be pled with particularity.” Sussman, 2007 WL 908280 at *4 (citing Parker v. Gordon, 442 So.2d 273, 275 (Fla. 4th DCA 1983) (“it would be necessary to state with particularity the facts which purportedly created the duty that was breached, so that the court could determine as a matter of law whether there was such a duty”)).

Plaintiffs do not identify any conduct by EverBank with regard to establishing and managing escrow accounts for Plaintiffs in connection with their mortgages or their force-placed insurance out of •the ordinary in or atypical of a lender borrower relationship which would establish the “special circumstances” of trust and confidence required for a fiduciary duty to exist. To the contrary: Plaintiffs do not allege that EverBank’s establishment or maintenance of escrow accounts for Plaintiffs was itself improper or unusual in the context of servicing a home mortgage. Furthermore, Plaintiffs allege that EverBank placed the insurance to protect its own collateral and its own interests in Plaintiffs’ mortgages, and that EverBank informed Plaintiffs that the force-placed insurance was for EverBank’s, and not Plaintiffs’, benefit. In Feaz, the Eleventh Circuit specifically held that a lender’s administration of escrow funds to pay for force-placed insurance does not create a fiduciary relationship. Feaz, 745 F.3d at 1110-11. The Seventh Circuit in Cohen also rejected the contention that a lender could act with divided loyalties when force-placing insurance explicitly to protect its own interests. Cohen, 735 F.3d at 611, 612 n. 4. New York courts have similarly held that “[a] fiduciary relationship does not arise ‘simply because the mortgagee makes payments from an escrow account on behalf of the mortgagor.’ ” See Miller v. Wells Fargo Bank, N.A., 994 F.Supp.2d 542, 556 (S.D.N.Y.2014); Gorham-DiMaggio v. Countrywide Home Loans, Inc., 592 F.Supp.2d 283, 295 (N.D.N.Y.2008). Accordingly, Plaintiffs’ claim for breach of fiduciary duty is dismissed. See Circeo-Loudon v. Green Tree Servicing, LLC, 2014 WL 4219587, at *2 (S.D.Fla. Aug. 25, 2014) (relying on Feaz and Cohen to dismiss breach of fiduciary duty claim where lender used escrow funds to charge borrower for force-placed insurance).

9. Plaintiffs’ RICO Claims Are Insufficiently Pleaded (Counts IX and X)

Plaintiffs have failed to state a civil claim for violation of RICO under the relevant pleading standards.

To state a civil RICO claim, a plaintiff must sufficiently allege “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Lehman v. Lucom, 727 F.3d 1326, 1330 (11th Cir.2013). Where, as here, the defendants’ alleged predicate “pattern of racketeering” activity is based on mail and wire fraud, the plaintiffs must allege the existence of a scheme to defraud and that the defendants “intentionally participate^] in a scheme to defraud another of money or property and use[d] the mails or wires in furtherance of that scheme.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.2010). “Courts have noted that RICO allegations merit particular scrutiny if, as here, the predicate acts are mail and wire fraud, and if the use of mail or wires to communicate is not in and of itself illegal, unlike other predicate acts such as murder or extortion.” Rothstein v. GMAC Mortgage, LLC, 2013 WL 5437648, at *12 (S.D.N.Y. Sept. 30, 2013) (quoting Rosenson v. Mordowitz, 2012 WL 3631308, at *4 n. 3 (S.D.N.Y. Aug. 23, 2012) and citing Am. Fed. of State, Cnty. and Mun. Emps. Dist. Council 37 v. Bristol-Myers Squibb Co., 948 F.Supp.2d 338, 345 (S.D.N.Y.2013)).

“[I]n the Eleventh Circuit ‘[a] scheme to defraud requires proof of material misrepresentations, or the omission or concealment of material facts reasonably calculated to deceive persons of ordinary prudence.’ ” Lockheed Martin Corp. v. Boeing Co., 357 F.Supp.2d 1350, 1372 (M.D.Fla.2005) (quoting United States v. Hasson, 333 F.3d 1264, 1270-71 (11th Cir.2003) and citing Neder v. United States, 527 U.S. 1, 21, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Plaintiffs must establish that the defendant “had a conscious, knowing intent to defraud and that a reasonably prudent person would have been deceived by its misrepresentations” which amounts to “the same showing of reasonable reliance that is required for establishing common law fraud.” Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1306 (11th Cir.2003) (citing Pelletier v. Zweifel, 921 F.2d 1465, 1503 (11th Cir.1991) (concluding that a sophisticated plaintiffs claim of reliance failed in light of undisputed facts showing that he “did not trust [the defendant’s] representations and did not act as though he trusted [the defendant]”); Beck v. Prupis, 162 F.3d 1090, 1095 (11th Cir.1998) (stating that a plaintiff must “prove that a reasonable person would have relied on the misrepresentations”)).

Direct first-party reliance is not an element in a civil RICO claim. See Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 661, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008) (“a plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant’s alleged misrepresentations”); Wallace v. Midwest Financial & Mortgage Services, Inc., 714 F.3d 414 (6th Cir.2013) (“For RICO purposes, reliance and proximate cause remain distinct — if frequently overlapping — concepts.... [A] plaintiff need not show that she relied on any allegedly fraudulent misrepresentations to state a claim ... [but] need only show use of the mail in furtherance of a scheme to defraud and an injury proximately caused by the scheme.”); Harden Mfg. Corp. v. Pfizer, Inc., 712 F.3d 60, 66-67 (1st Cir.2013) (“[D]irect reliance is not an element of proximate cause in a civil RICO cause of action based on mail fraud.”). However, to recover for an alleged violation of civil RICO, Plaintiffs must assert that defendants’ alleged racketeering activity proximately caused their injuries. Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 705, 712 (11th Cir.2014) (a “civil RICO plaintiff must always establish a proximate-causal, ‘direct relation’ between the injury and injurious conduct at issue”); Beck v. Prupis, 162 F.3d 1090, 1095-96 (11th Cir.1998) (holding that to state a civil RICO claim, “the racketeering activity must be more than simply the ‘but for’ cause of the injury; it must also be the proximate cause”).

Because Plaintiffs’ RICO claims are predicated on allegations of fraud, their allegations must satisfy the heightened pleading requirement of Fed. R.Civ.P. 9(b) and allege: “(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.” Am. Dental Ass’n, 605 F.3d at 1291 (citations omitted).

Here, Plaintiffs contend that the misrepresentations and omissions in Ever-Bank’s communications with Plaintiffs regarding their force-placed insurance — that the charges were authorized and related to the insurance coverage and not, as alleged, masked kickbacks — were material or reasonably calculated to deceive EverBank’s borrowers, and that those misrepresentations or omissions proximately caused Plaintiffs injuries. Plaintiffs’ allegations are implausible.

First, Plaintiffs have not stated with particularity how the alleged misrepresentations and omissions were material to the Defendants’ alleged scheme to defraud. Plaintiffs have not pleaded with particularity how Defendants’ conduct regarding the misrepresented or concealed kickback charges were material to Plaintiffs’ decisions not to procure the voluntary insurance coverage required under their mortgage agreements but, instead, to default under their agreements and concede to EverBank’s forcibly placed insurance coverage and the ensuing charges. Neither have they stated with particularity how EverBank’s communications were reasonably calculated to deceive its borrowers in making their decisions not to obtain coverage and to pay the amounts charged by EverBank as force-placed insurance costs. Plaintiffs admit that EverBank had the right to place hazard coverage and to charge considerably more than what Plaintiffs would have paid had they fulfilled their insurance obligations. They admit that Defendants warned and disclosed to Plaintiffs that their voluntary coverage lapsed and when it lapsed; that they had an obligation to maintain coverage; that if they did not maintain coverage on their own, EverBank would obtain a policy on their property; that the force-placed policy would cost substantially more; that the force-placed policy would inure to Ever-Bank’s benefit; and that the increased amount would be charged by EverBank to Plaintiffs. “The Court cannot see how letters that warn of an imminent bad deal and urge one to seek better could possibly be calculated to deceive anyone.” Weinberger v. Mellon Mortgage Co., 1998 WL 599192, at *5 (E.D.Pa. Sept. 10, 1998) (dismissing RICO claims against lender based on allegations of “illegal kickback scheme to defraud mortgagors”).

Perhaps more important, Plaintiffs have not plausibly alleged that EverBank’s “scheme” proximately caused injury to Plaintiffs. EverBank’s alleged scheme consisted of urging Plaintiffs to adhere to their obligations and to obtain coverage or risk being charged significantly more for less coverage — and then, allegedly, including as some fraction of the charge for that coverage unearned commissions masked as authorized costs. Taking the allegations as true, it is simply not plausible that Plaintiffs’ injuries in paying for the unauthorized charges were proximately caused by Defendants’ allegedly improper scheme. See Gustafson v. BAC Home Loans Servicing, LP, 2012 WL 7071488, at *7 (C.D.Cal. Dec. 26, 2012) (dismissing RICO claims against lender where lender warned borrowers that they would be charged for force-placed insurance costs and that lender and its affiliates would profit from the insurance placement). Plaintiffs have not even alleged with the requisite plausibility that, but for Ever-Bank’s allegedly fraudulent conduct regarding the force-placed insurance charges — which added only a fraction to the insurance charges that Plaintiffs readily admit would have in any event been significantly more expensive than market-available coverage — Plaintiffs would not have paid the full force-placed insurance charges but, rather, would have opted either to now get their own insurance (as they were required but failed to do in the first place and after repeated admonition to do so) or contest the fractional, unauthorized charge. Contra Cannon v. Wells Fargo Bank, N.A., 2014 WL 324556, at *3 (N.D.Cal. Jan. 29, 2014) (finding that “it is plausible that Plaintiffs would not have paid, or would have contested, the premiums for the force-placed insurance, if Defendants had disclosed that the premiums included unearned kickbacks rather than earned commissions”). Confronted with RICO claims based on a nearly identical set of alleged facts, a court in this District recently determined the allegations to be “senseless.” Circeo-Loudon, 2014 WL 4219587, at *3.

Drawn to a logical conclusion, Plaintiffs’ theory of damages amounts to a claim that if they knew the charges were kickbacks, [plaintiffs] would have breached a contractual duty to pay [the force-placed insurance charges]. Losing an opportunity to breach a contract cannot constitute a cognizable fraud harm.

Id.

Simply put, Plaintiffs have not plausibly alleged that their injuries were proximately caused by EverBank’s alleged scheme. This determination does not impose a reliance requirement on pleading a civil RICO claim. Contra Rothstein, 2013 WL 5437648, at *14. It simply holds Plaintiffs to their requirement to plausibly plead “a proximate-causal, ‘direct relation’ between the injury and injurious conduct at issue.” Simpson, 744 F.3d at 712. Because they have not done so, Plaintiffs’ RICO claims are dismissed.

10. Avelar-Lemus’ NYDPA Claim is Insufficiently Pleaded (Count XI)

The NYDPA prohibits all “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. G.B.L. § 349(a). “To state a claim under § 349, a plaintiff must allege: (1) the act or practice was consumer-oriented; (2) the act or practice was misleading in a material respect; and (3) the plaintiff was injured as a result.” Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir.2009); see also Stutman v. Chem. Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (N.Y.2000) (“A plaintiff under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act”). “The causation element is essential: The plaintiff must show that the defendant’s material deceptive act caused the injury.” Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 74 (S.D.N.Y.2006); see also Petitt v. Celebrity Cruises, Inc., 153 F.Supp.2d 240, 266 (S.D.N.Y.2001) (same, citing Stutman, 95 N.Y.2d at 29, 709 N.Y.S.2d 892, 731 N.E.2d 608).

Avelar-Lemus’ NYDPA claim fails for the same reason Plaintiffs’ RICO claims are deficient: he has not plausibly alleged that EverBank’s conduct caused the complained of injuries. Plaintiffs argue that “the conduct alleged by Plaintiffs is likely to mislead a reasonable consumer as to the amounts of [ ] insurance coverage required, as well as the appropriateness of the [EverBank’s] process of selecting and' exchanging financial benefits with a force-placed insurance provider.” Hoover v. HSBC Mortgage Corp. (USA), 9 F.Supp.3d 223 (N.D.N.Y.2014); see also Casey, 915 F.Supp.2d at 266 (kickback scheme would likely mislead a reasonable consumer as to the amount of flood insurance he was required to maintain under the contract). Regardless, Plaintiffs have “failed to plead how these allegedly deceptive acts or practices caused [their] alleged injury, namely, paying more than [they] should have paid for force-placed insurance.” Miller v. Wells Fargo Bank, N.A., 994 F.Supp.2d 542, 558 (S.D.N.Y.2014). Taking the allegations as true, Plaintiffs paid more than was appropriate for force-placed insurance because EverBank charged them inflated costs — not because EverBank misled Plaintiffs by misrepresenting or omitting anything about the internal pricing and mechanics of the force-placed insurance charges. Without plausibly alleging the requisite causation, Plaintiffs cannot state a claim under the NYDPA.

11. Plaintiffs Have Not Failed to Join a Necessary Party

In its Motion, EverBank argued that Plaintiff Wilson’s wife is a necessary party to this action, and that, due to Plaintiffs’ failure to join her to this action, Wilson’s claims should be dismissed pursuant to Rules 12(b)(7) and 19. However, because the Wilsons’ interests are aligned and their legal claims are the same, the current composition of the parties to this case does not risk any inconsistent judgment or multiple recoveries. See Jackson, 44 F.Supp.3d at 1220, 2014 WL 4179867 at *7 (rejecting same argument for joinder and dismissal in force-placed insurance class action). EverBank admitted as much at the hearing on the Motions. Accordingly, Wilson’s spouse need not be joined to this action.

C. The Motion on Jurisdiction

Separate from each of their Motions to Dismiss, ASIC and SGIC (together, the “Insurer Defendants”) have moved to dismiss the nationwide class allegations contained in Counts IV and VII of the Complaint for lack of subject matter jurisdiction, pursuant to Rules 12(b)(1) and 12(h)(3). They argue that Plaintiffs lack Article III standing to assert state common law claims for unjust enrichment and tortious interference under the laws of the states where they do not reside and in which they do not claim to have been injured. The Insurer Defendants urge the Court to address this issue now, rather than defer their standing challenge until the class certification stage.

One element of the case-or-controversy requirement under Article III of the United States Constitution is that plaintiffs “must establish that they have standing to sue.” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). Specifically, to satisfy Article Ill’s standing requirement, a plaintiff must establish three criteria:

First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not