                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 13-3699
                                  ________________

                                  NEAL HAMMILL;
                                 AMY JO HAMMILL,
                             On behalf of Themselves and
                             All Others Similarly Situated,
                                                      Appellants

                                           v.

                              BANK OF AMERICA, N.A.

                                  ________________

                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 1-12-cv-00117)
                      District Judge: Honorable Joy Flowers Conti
                                   ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 12, 2014

                     Before: AMBRO and BARRY, Circuit Judges
                               and RESTANI,* Judge

                                 (Filed : June 17, 2014)

                                  ________________

                                      OPINION
                                  ________________


*
 Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
AMBRO, Circuit Judge

       Neal and Amy Jo Hammill appeal from the District Court’s dismissal of their class

action lawsuit against Bank of America, N.A., for violations of Pennsylvania’s Loan

Interest and Protection Law, 41 Pa. Cons. Stat. § 101 et seq. (“Act 6”), and for tortious

interference. For the reasons that follow, we affirm.1

I.     Background

       The Hammills owned a home in North East, Pennsylvania. Bank of America was

the servicer on their mortgage. When the Hammills defaulted on their mortgage, Bank of

America sent them a pre-foreclosure notice. The notice advised the Hammills that they

could cure their default and avoid foreclosure by mailing to a law firm in Philadelphia the

overdue amount (about $12,500) by cashier’s check, certified check, or money order.

When the Hammills failed to cure the default, Bank of America filed a foreclosure action

in state court in Pennsylvania. Within seven months of filing the foreclosure action,

Bank of America voluntarily dismissed the action without prejudice.

       Soon after the dismissal, the Hammills filed this putative class action lawsuit.

They alleged that Bank of America violated Act 6 and tortiously interfered with their

mortgage contract by failing to notify them that they could cure their default by cash

payment.2 According to the Hammills, before filing a foreclosure action, §§ 403 and

404(b)(1) of Act 6 require lenders to issue a “Notice of Intention to Foreclose” that

1
  The District Court had subject matter jurisdiction under 28 U.S.C. § 1332. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
2
  The Hammills also alleged violations of the Pennsylvania Housing Finance Agency
Law, 35 Pa. Cons. Stat. § 1680.403c, but do not appeal dismissal of that claim. They
similarly do not appeal the dismissal of their claims for declaratory and injunctive relief.
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explains to borrowers that they may cure default by tendering all amounts due “in the

form of cash, cashier’s check or certified check.” 41 Pa. Cons. Stat. § 404(b)(1)

(emphasis added). Because Bank of America failed to notify buyers that they could cure

default by a cash payment, its foreclosure action was allegedly prohibited by Act 6. Of

significance to this appeal, the Hammills did not allege they could have cured their

default by making a cash payment. The only damages claimed by them were the

attorneys’ fees and costs they incurred in defending the “illegal” foreclosure action in

state court.

       The District Court granted Bank of America’s motion to dismiss the complaint

with prejudice. It held that the Hammills’ Act 6 claim failed because they did not plead

legally cognizable damages under the Act. The District Court also noted, when

determining whether to grant the Hammills leave to amend their complaint, that they

“failed to allege that there was a causal connection between the purported defect in [Bank

of America’s] pre-foreclosure notice and their payment of attorney’s fees to defend

against the foreclosure action.” Hammill v. Bank of America, N.A., 2013 WL 4648317, at

*6 (W.D. Pa. Aug. 29, 2013). The Hammills timely filed this appeal.

II.    Standard of Review

       “Our review of a motion to dismiss is plenary.” Nuveen Mun. Trust ex rel. Nuveen

High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 293 (3d Cir.

2012). “We ‘accept as true all well-pled factual allegations in the complaint and all

reasonable inferences that can be drawn from them, and we affirm the order of dismissal

only if the pleading does not plausibly suggest an entitlement to relief.’” Id. (quoting

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Fellner v. Tri–Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir. 2008)). “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Factual

allegations need only “raise a right to relief above the speculative level,” Twombly, 550

U.S. at 555, though we “are not bound to accept as true a legal conclusion couched as a

factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “[W]e can affirm on

any basis appearing in the record.” Curay-Cramer v. Ursuline Acad. of Wilmington, Del.,

Inc., 450 F.3d 130, 133 (3d Cir. 2006).

III.   Analysis

       On appeal, the opening brief of the Hammills focuses exclusively on challenging

the District Court’s conclusion that they failed to plead damages. While we make no

determination as to the correctness of that conclusion by the Court, we affirm for the

independent reason that the Hammills failed to allege there was a causal connection

between Bank of America’s failure to disclose that they could cure their default by cash

payment and any injury or damages they suffered.

       Section 504 of Act 6 provides that “[a]ny person affected by a violation of the act

shall have the substantive right to bring an action . . . for damages by reason of

such . . . violation . . .” 41 Pa. Cons. Stat. § 504. Under its plain language, the Hammills

may only bring suit if Bank of America’s violation of the Act actually caused some

injury. Cf. In re Smith, 866 F.2d 576 (3d Cir. 1989) (finding a private right of action

where lender sent notice of foreclosure to incorrect address in violation of Act 6 and the

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borrower, on learning of the foreclosure action, immediately attempted to cure the

default). In their complaint, the Hammills allege no connection between Bank of

America’s violation of Act 6 and their damages. Specifically, they do not allege that, had

they been informed that they could cure their default by a cash payment, they would have

done so, thereby preventing a foreclosure action and the associated attorneys’ fees.

       Given the Hammills’ failure to plead a sufficient causal connection, their Act 6

claim was properly dismissed. Their tortious interference claim (based on Bank of

America’s sending an “illegal” pre-foreclosure notice in violation of the Hammills’

contract with the holder of their mortgage) similarly fails to allege that the technical

defect in the pre-foreclosure notice was causally related to the Hammills’ alleged

damages in any way.

       For these reasons, we affirm.




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