                                               NOT PRECEDENTIAL


                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          _____________

                               No. 13-1972
                              _____________

                           GENE W. SALVATI,
                                      Appellant

                                     v.

  DEUTSCHE BANK NATIONAL TRUST COMPANY, N.A., a subsidiary of
   Deutsche Bank, AG; BANK OF AMERICA HOME LOANS SERVICING, a
subsidiary of Bank of America, N.A.; MCCABE, WEISBERG & CONWAY, P.C.,
                            a law firm debt collector
                                _____________


              On Appeal from the United States District Court
                  for the Western District of Pennsylvania
                      District Court No. 2:12-cv-00971
              District Judge: The Honorable Arthur J. Schwab


             Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              May 13, 2014

        Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges

                           (Filed: July 29, 2014)

                         _____________________

                                OPINION
                         _____________________

                                     1
SMITH, Circuit Judge.

      Gene Salvati (“Salvati”) brought this putative class action lawsuit, on behalf

of himself and other similarly situated former and current homeowners in

Pennsylvania, alleging that defendants, Deutsche Bank National Trust Company,

N.A., a subsidiary of Deutsche Bank AG (“Deutsche Bank”), Bank of America

Home Loans Servicing, a subsidiary of Bank of America, N.A. (“Bank of

America”), and McCabe, Weisberg & Conway, P.C. (“McCabe”) committed acts

in violation of state and federal consumer protection laws in connection with

residential mortgage foreclosure proceedings. The United States District Court for

the Western District of Pennsylvania dismissed the entirety of Salvati’s claims. For

the reasons set forth below, we will affirm in part, reverse in part, and remand.

I.    Facts and Procedural History

      In 2006, Salvati entered into a loan transaction with New Century Mortgage

Corporation (“New Century”), pursuant to which he signed a promissory note in

the amount of $139,200.00, secured by a mortgage on his residential property.1

Subsequent to the execution of this loan transaction, New Century assigned its




1
      Salvati also executed a secondary promissory note in the amount of $34,800.00,
secured by a secondary mortgage on the property, as part of this loan transaction. The
secondary note and mortgage are not at issue in this litigation.
                                          2
interest in the mortgage to Deutsche Bank.2 Bank of America is the servicer of

Salvati’s loan.

      Salvati defaulted on the loan. In May 2011, McCabe, a law firm representing

Deutsche Bank, sent Salvati a pre-foreclosure notice (the “Act 91/Act 6 Notice”),

required under Pennsylvania law prior to the initiation of any foreclosure suit,

informing him that the loan was in default. The Act 91/Act 6 Notice listed

Deutsche Bank as the lender and indicated that Deutsche Bank intended to

accelerate the debt and/or foreclose if Salvati did not cure the default. Salvati did

not cure the default.

      In February 2012, McCabe filed a foreclosure complaint on Deutsche

Bank’s behalf against Salvati in Pennsylvania state court. Deutsche Bank

voluntarily discontinued this foreclosure suit in March 2012.

      On June 8, 2012, Salvati filed this lawsuit in the Court of Common Pleas of

Allegheny County, Pennsylvania. The lawsuit identified Salvati and another


2
       The parties dispute the date that Deutsche Bank acquired its interest in this
mortgage. Deutsche Bank contends that, pursuant to a Pooling and Servicing Agreement
dated June 1, 2006, New Century pooled Salvati’s mortgage with other mortgages and
conveyed the pool to Deutsche Bank, National Trust Company as Trustee of the Morgan
Stanley ABS Capital I Inc. Trust 2006-H5. Salvati alleges that Deutsche Bank did not
purport to acquire its interest in his mortgage until September 2011, when New Century
executed an assignment to Deutsche Bank. In assessing the District Court’s dismissal of
claims under Rule 12(b)(6), we take the well-pleaded allegations of the complaint as true
and interpret them in the light most favorable to Salvati, drawing all inferences in his
favor. PG Publ’g Co. v. Aichele, 705 F.3d 91, 97 (3d Cir. 2013). For the purposes of this
opinion, we take as true Salvati’s contention that Deutsche Bank purportedly acquired its
interest in Salvati’s mortgage in September 2011.
                                           3
mortgagor, Olivia Jones,3 as named plaintiffs and purported to bring this action on

behalf of a class of former and current Pennsylvania homeowners harmed by

defendants’ allegedly unlawful foreclosure-related practices. The lawsuit alleged

that the foreclosure complaint filed against Salvati by Deutsche Bank contained

charges for certain items, such as attorneys’ fees and items labeled “Escrow

Advance” and “Corporate Advance,” that Salvati asserts lacked supporting

documentation or explanations of when and how the costs were incurred.

Complaint ¶¶ 16–33, Joint Appendix (“J.A.”) 45a–48a.

      The complaint alleges seven counts: violation of the Pennsylvania Loan

Interest and Protection Law (“Act 6”), 41 Pa. Stat. Ann. §§ 101 et seq., against

Deutsche Bank, Bank of America, and McCabe (Count I); violation of Act 6 and/or

the Pennsylvania Housing Finance Agency Law (“Act 91”), 35 Pa. Stat. Ann.

§§ 1680.401c et seq., against Deutsche Bank, Bank of America, and McCabe

(Count II); violation of the Pennsylvania Unfair Trade Practices and Consumer

Protection Law (“UTPCPL”), 73 Pa. Stat. Ann. §§ 201-1 et seq., against Deutsche

Bank, Bank of America, and McCabe (Count III); violation of the Fair Debt

Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., against McCabe


3
       According to the complaint, in 2005 Ms. Jones entered into a loan transaction with
IndyMac Bank, F.S.B., and in 2009 her mortgage was purportedly acquired by OneWest
Bank, F.S.B. (“OneWest”). The lawsuit originally named OneWest as a defendant and
included various claims against OneWest. However, after Ms. Jones passed away in June
2012, the claims against OneWest were dismissed. OneWest is not a party to this appeal.
                                           4
(Count IV); violation of the Pennsylvania Fair Credit Extension Uniformity Act

(“FCEUA”), 73 Pa. Stat. Ann. §§ 2270.1 et seq., as applied to debt collectors,

against McCabe (Count V); violation of the FCEUA, as applied to creditors,

against Deutsche Bank and Bank of America (Count VI); and breach of contract

against Deutsche Bank (Count VII). Defendants removed the suit to federal court,

pursuant to 28 U.S.C. § 1441.

      Following removal of this lawsuit, Deutsche Bank, Bank of America, and

McCabe each moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

The matter was referred to the Magistrate Judge, who issued a report and

recommendation advising the District Court to grant in part and deny in part the

motions to dismiss.

      Each of the parties filed objections to portions of the report and

recommendation. In particular, Defendants argued that the report and

recommendation relied on a mistaken premise—based on the allegations in the

complaint—that Salvati had paid at least part of the fees that he alleged had been

unlawfully charged to him. See Report & Recommendation at 9, J.A. 341a;

Complaint ¶ 33, J.A. 48a (“Mr. Salvati and Ms. Jones each have paid at least a

portion of the illegal charges charged to their respective accounts.”). In his

objection to the report and recommendation, however, Salvati “clarif[ied]” that “as

a result of the foreclosure proceeding against him, he did not personally pay any

                                        5
money to the Defendants.” Objections to the Magistrate’s Report and

Recommendation at 7, J.A. 379a. Rather, Salvati put forward the theory that he had

“suffered a loss of property (in an amount equivalent to the demanded payment), as

a result of the automatic lien in an amount equivalent to the foreclosure costs and

expenses that had been wrongly demanded.” Id.

      Reviewing the report and recommendation and the parties’ objections, the

District Court disagreed with the Magistrate Judge as to the viability of some of

Salvati’s claims. The District Court dismissed the complaint as to all counts.

Salvati timely appealed.4

II.   Analysis

      Upon reviewing the record before us, we conclude that the District Court did

not err in dismissing Counts I and II as to Bank of America and McCabe, and did

not err in dismissing Counts III, V, VI, and VII. However, the District Court erred

in dismissing Counts I and II with respect to Deutsche Bank and erred in

dismissing Count IV.

      A.     Counts I and II

      The District Court erred in dismissing Counts I and II because it did not

analyze the possibility that Salvati has a valid remedy under §§ 503 and 504 of Act

4
       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, 1367, and
1453. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over a district court’s grant of dismissal under Rule 12(b)(6). Fleisher v. Standard
Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012).
                                            6
6. In Count I, Salvati alleged that Deutsche Bank, Bank of America, and McCabe

charged and/or collected unauthorized foreclosure-related attorneys’ fees and

expenses, in violation of § 406 of Act 6, 41 Pa. Stat. Ann. §§ 101 et seq. Count I

also alleged that defendants charged attorneys’ fees to homeowners prior to the

receipt of the notice to the homeowner required by Act 6 and/or Act 91, in

violation of § 403 of Act 6. In Count II, Salvati alleged that Deutsche Bank, Bank

of America, and McCabe violated Act 6 and Act 91, 35 Pa. Stat. Ann.

§§ 1680.401c et seq., by commencing defective foreclosure proceedings and

failing to send proper notices to mortgagees required under Act 6 and/or Act 91.

       Both Counts I and II invoked the remedies provisions in Article V of Act 6.

In both counts, Salvati sought statutory damages, reasonable attorneys’ fees, costs,

and expenses under §§ 501 and 502 of Act 6. Counts I and II also “request[ed] an

award of statutory attorneys’ fees under Act 6, §§ 503–504.” Complaint at 20, J.A.

60a.

       We agree with the District Court that Salvati has no remedy under either

§§ 501 or 502 of Act 6. Section 501 provides that a borrower is not required to pay

interest in excess of the maximum lawful rate. See 41 Pa. Stat. Ann. § 501.

Because neither Count I nor Count II alleges that Salvati was charged excessive

interest, § 501 provides no basis for recovery.



                                          7
      Additionally, the District Court correctly concluded that Salvati has no

remedy under § 502 because Salvati admittedly has not paid any portion of the

allegedly unlawful fees or expenses. See Objections to the Magistrate’s Report and

Recommendation at 7, J.A. 379a (acknowledging that Salvati “did not personally

pay any money to the Defendants”). By its terms, § 502 only provides a remedy to

“[a] person who . . . has paid charges prohibited or in excess of those allowed by

this act or otherwise by law . . . .” 41 Pa. Stat. Ann. § 502 (emphasis added). We

agree with the District Court that, under the language of the statute, there is no

basis for Salvati’s argument that he can sustain a claim under § 502 based on an

inflated lien on his property where he has not paid any of the allegedly unlawful

charges.

      Although §§ 501 and 502 do not provide a basis for recovery, Salvati also

“request[ed] an award of statutory attorneys’ fees under Act 6, §§ 503–504,” in

Counts I & II. However, the District Court did not analyze whether Salvati could

recover under these sections. Section 504 provides:

      Any person affected by a violation of the act shall have the
      substantive right to bring an action on behalf of himself individually
      for damages by reason of such conduct or violation, together with
      costs including reasonable attorney’s fees and such other relief to
      which such person may be entitled under law.

41 Pa. Stat. Ann. § 504. Section 503 allows a borrower who prevails in an action

under Act 6 to “recover the aggregate amount of costs and expenses determined by

                                         8
the court to have been reasonably incurred on his behalf in connection with the

prosecution of such action, together with a reasonable amount for attorney’s fee.”

41 Pa. Stat. Ann. § 503(a). Because § 504 does not contain § 502’s requirement

that the plaintiff “ha[ve] paid” the charges and fees, this section might provide

Salvati a remedy even if he never paid money to the defendants. If § 504 provides

Salvati a viable remedy, moreover, § 503 could allow him to recover attorneys’

fees.

        However, Salvati’s exclusive reliance in his complaint on violations of § 403

and/or § 406 creates an additional obstacle to relief with respect to Bank of

America and McCabe. These sections apply only to “residential mortgage lenders,”

41 Pa. Stat. Ann. §§ 403, 406, which Act 6 defines as “any person who lends

money or extends or grants credit and obtains a residential mortgage to assure

payment of the debt. The term shall also include the holder at any time of a

residential mortgage obligation.” 41 Pa. Stat. Ann. § 101. Salvati has not

established that either Bank of America or McCabe fit within this definition. As to

Bank of America, Salvati does not challenge the Magistrate Judge’s conclusion

that his Act 6 claim fails because Bank of America does not meet this definition.

As to McCabe, there is no allegation that McCabe lent money, extended or granted

credit, or held a residential mortgage obligation, and therefore the complaint fails

to establish that McCabe is a “residential mortgage lender.”

                                          9
      Accordingly, we will affirm the District Court’s dismissal of Salvati’s claims

in Counts I and II with respect to Bank of America and McCabe. However,

because the District Court dismissed Counts I and II on the basis that Salvati had

not paid any of the allegedly unlawful fees or charges without discussing §§ 503

and 504, we will reverse and remand as to Counts I and II with respect to Deutsche

Bank only.

      B.     Count III

      We conclude that the District Court did not err in dismissing Count III. In

Count III, Salvati alleged that Deutsche Bank, Bank of America, and McCabe

violated Pennsylvania’s Unfair Trade Practices and Consumer Protection Law

(“UTPCPL”), 73 Pa. Stat. Ann. §§ 201-1 et seq., by overcharging and/or

misrepresenting the amount owed on Salvati’s mortgage loan. Count III sought

recovery under § 201-9.2 of the UTPCPL, which creates a private right of action

for “[a]ny person who . . . suffers any ascertainable loss of money or property, real

or personal, as a result of the use or employment by any person of a method, act or

practice declared unlawful by section 3 of [the UTPCPL].” 73 Pa. Stat. Ann.

§ 201-9.2(a). Section 3 of the UTPCPL declares unlawful the “[u]nfair methods of

competition and unfair or deceptive acts or practices in the conduct of any trade or




                                         10
commerce as defined by [§ 201-2(4)(i)-(xxi)].” 73 Pa. Stat. Ann. § 201-3. Salvati

alleged that defendants violated Subsections (v) and (xxi) of § 201-2(4).5

       Upon reviewing the record before us, we conclude that the District Court

correctly dismissed Count III because Salvati failed to sufficiently allege an

“ascertainable loss of money or property” sufficient to support his allegations

under the UTPCPL. 73 Pa. Stat. Ann. § 201-9.2(a). As noted previously, Salvati

has acknowledged that he has not paid any allegedly unlawful charges imposed by

defendants. While Salvati argues that Count III alleges an ascertainable loss of

property, i.e. the “increases in his unpaid principal balance and the resultant

inflation of the encumbrance on his home,” Appellant’s Br. 18, 30, the allegations

in Count III of the complaint make no mention of any increased encumbrance or

lien on Salvati’s property. Quite the opposite, the only loss that Salvati alleged in

Count III was a loss of money resulting from “pa[yment of] the misrepresented and

overcharged amounts,” Complaint ¶ 82, J.A. 62a, and Salvati now acknowledges

he never made any such payments to the defendants. Accordingly, we conclude


5
       These sections designate, as “unfair methods of competition” and “unfair or
deceptive acts or practices,” the following:
       (v)    Representing that goods or services have sponsorship, approval,
       characteristics, ingredients, uses, benefits or quantities that they do not have or
       that a person has a sponsorship, approval, status, affiliation or connection that he
       does not have; . . .
       (xxi) Engaging in any other fraudulent or deceptive conduct which creates a
       likelihood of confusion or of misunderstanding.
73 Pa. Stat. Ann. § 201-2(4)(v) & (xxi).
                                            11
that Salvati has not met his burden of pleading an ascertainable loss of property

sufficient to support his allegations in Count III and will affirm on this count.

      C.     Count IV

      We conclude that the District Court erred in dismissing Count IV. In Count

IV, Salvati alleged that McCabe violated the Fair Debt Collection Practices Act, 15

U.S.C. §§ 1692 et seq., which prohibits debt collectors from making any false

representations as to the “character, amount, or legal status of any debt,” 15 U.S.C.

§ 1692e(2)(A), or collecting or attempting to collect amounts not “expressly

authorized by the agreement creating the debt or permitted by law.” 15 U.S.C.

§ 1692f(1). Salvati alleged that, because McCabe purportedly “demand[ed] and/or

collect[ed] fees that were unlawful under Act 6 and/or Act 91,” McCabe had

violated the provisions of the FDCPA. Complaint ¶ 88, J.A. 64a.

      The District Court held that dismissal of Count IV was warranted because

“Salvati has paid none of the alleged illegal fees and costs and, thus, has not

suffered any actual damages” in connection with his FDCPA claim. J.A. 24a.

However, the District Court’s conclusion was error because it ignored the fact that,

under the FDCPA, a plaintiff may collect statutory damages even if he has suffered

no actual damages. See 15 U.S.C. § 1692k(a); see also Federal Home Loan Mortg.

Corp. v. Lamar, 503 F.3d 504, 513 (6th Cir. 2007) (“[A] consumer may recover

statutory damages [under the FDCPA] if the debt collector violates the FDCPA

                                          12
even if the consumer suffered no actual damages.”); Miller v. Wolpoff &

Abramson, L.L.P., 321 F.3d 292, 307 (2d Cir. 2003) (“[C]ourts have held that

actual damages are not required for standing under the FDCPA.”). See generally

F.T.C. v. Check Investors, Inc., 502 F.3d 159, 166 (3d Cir. 2007) (“The FDCPA

allows consumers to sue an offending creditor for actual damages, attorney’s fees

and costs, as well as statutory damages up to $1,000.”) (emphasis added). The

District Court incorrectly concluded that because Salvati had not paid any of the

allegedly unlawful fees or expenses, the FDCPA claim must fail. Additionally, we

are not persuaded by McCabe’s suggestion that, in dismissing Count IV, the

District Court exercised its discretion in denying Salvati statutory damages under

the FDCPA. See McCabe’s Br. 19. The District Court’s opinion is silent on the

issue of statutory damages under the FDCPA and nowhere did the District Court

indicate that it was exercising such discretion. Accordingly, we will reverse and

remand the District Court’s dismissal as to Count IV.

      D.     Count V

      The District Court correctly dismissed Count V, in which Salvati alleged

that McCabe had violated the Pennsylvania Fair Credit Extension Uniformity Act

(“FCEUA”), 73 Pa. Stat. Ann. §§ 2270.1 et seq. The FCEUA provides, “It shall

constitute an unfair or deceptive debt collection act or practice under this act if a

debt collector violates any of the provisions of the Fair Debt Collection Practices

                                         13
Act.” 73 Pa. Stat. Ann. § 2270.4(a). Salvati alleged that because McCabe violated

the provisions of the FDCPA (Count IV), McCabe was also liable under the

FCEUA.

      We agree with the District Court that McCabe is excluded from the

FCEUA’s definition of a “debt collector” and thus cannot be liable under the

FCEUA. The FCEUA expressly excludes from the definition of “debt collector”

attorneys working “in connection with the filing or service of pleadings or

discovery or the prosecution of a lawsuit to reduce a debt to judgment.” 73 Pa.

Stat. Ann. § 2270.3(3)(ii). The District Court correctly determined that the

allegations in the complaint against McCabe relate to allegedly unlawful actions

taken “in connection with” the prosecution of a lawsuit based on Salvati’s

mortgage debt, and thus we conclude that McCabe is excluded from liability under

the FCEUA. Additionally, we do not agree with Salvati’s argument that McCabe’s

mailing of the allegedly defective Act 91/Act 6 Notice, which preceded the filing

of the foreclosure lawsuit against Salvati, was a “non-litigation mailing activit[y]”

that falls outside the scope of the FCEUA’s attorney exemption. Appellant’s Br.

40–41. As recognized by the District Court, under Pennsylvania law the mailing of

notice required by Act 6 and 91 must precede the filing of a foreclosure action, see

41 Pa. Stat. Ann. § 403(a), 35 Pa. Stat. Ann. § 1680.403c(a)-(b), and thus McCabe

was acting “in connection with” the prosecution of the foreclosure lawsuit in

                                         14
sending this notice. Accordingly, we will affirm the District Court’s dismissal of

Count V.

      E.     Count VI

      The District Court did not err in dismissing Count VI, in which Salvati

alleged that Bank of America and Deutsche Bank violated § 2270.4(b)(5) of the

FCEUA, 73 Pa. Stat. Ann. § 2270.1 et seq. Section 2270.4(b)(5) prohibits creditors

from using “any false, deceptive or misleading representation or means in

connection with the collection of any debt.” 73 Pa. Stat. Ann. § 2270.4(b)(5). The

FCEUA does not have its own remedy provision; rather, the FCEUA is enforced

through the statutory remedy provisions of the UTPCPL. See 73 Pa. Stat. Ann.

§ 2270.5(a) (“If a debt collector or creditor engages in an unfair or deceptive debt

collection act or practice under this act, it shall constitute a violation of . . . the

Unfair Trade Practices and Consumer Protection Law.”). Thus, Salvati’s FCEUA

claim is premised on the viability of his claim under the remedial provision of the

UTPCPL, 73 Pa. Stat. Ann. § 201-9.2. However, as explained above, Salvati has

no viable remedy under the UTPCPL, and thus his FCEUA claim against Bank of

America and Deutsche Bank must also fail. Accordingly, we conclude that the

District Court’s dismissal of Count VI was not error.

      F.     Count VII



                                          15
      Finally, we conclude that the District Court did not err in dismissing Count

VII, which alleged a breach of contract claim against Deutsche Bank. We agree

with the assessment of the Magistrate Judge and the District Court that Count VII

alleged claims on behalf of Ms. Jones against Deutsche Bank and OneWest, the

servicer of her loan, and did not allege claims on behalf of Salvati. As Ms. Jones is

no longer a plaintiff in this action, the District Court did not err in concluding that

Count VII should be dismissed.

      Additionally, we are not persuaded that the District Court erred in

dismissing this claim with prejudice rather than giving Salvati an opportunity to

amend Count VII. Salvati never made a proper motion to amend the complaint,

despite having substantial time and opportunity to do so. On August 20, 2012,

Deutsche Bank moved to dismiss Salvati’s complaint, arguing, inter alia, that

Count VII only asserted claims on behalf of Ms. Jones. See Memorandum of Law

in Support of Deutsche Bank National Trust Company’s Motion to Dismiss at 31–

32, Salvati v. Deutsche Bank Nat’l Trust Co., N.A., No. 2:12-cv-00971 (W.D. Pa.

Aug. 20, 2012), ECF No. 13. Salvati did not attempt to amend the complaint.

Thereafter, on February 1, 2013, the Magistrate Judge determined that the claims

in Count VII warranted dismissal, as “there is nothing in these allegations to

support a finding that they have been made on behalf of Mr. Salvati.” Report &

Recommendation at 23, Salvati v. Deutsche Bank Nat’l Trust Co., N.A., No. 2:12-

                                          16
cv-00971 (W.D. Pa. Feb. 1, 2013), ECF No. 46. Salvati still did not file a motion

for leave to amend. Instead, in his opposition to the report and recommendation,

Salvati indicated that any disagreement about whether he alleged claims on his

own behalf in Count VII “can and, at a minimum, should be resolved by an

Amended      Complaint.”    Objections    to   the   Magistrate’s    Report    and

Recommendation, Salvati v. Deutsche Bank Nat’l Trust Co., N.A., No. 2:12-cv-

00971 (W.D. Pa. Feb. 19, 2013), ECF No. 47. Such a “bare request” is not the

proper method for amending the complaint. See U.S. ex rel. Zizic v.

Q2Administrators, LLC, 728 F.3d 228, 243 (3d Cir. 2013). Thus, the District Court

did not err in dismissing Count VII without granting Salvati leave to amend this

defective count.

      We also expressly reject Salvati’s contention—set forth in his letter,

submitted pursuant to Fed. R. App. P. 28(j), dated May 15, 2014—that the District

Court’s order of March 27, 2013, indicating that the court would “accept no further

filings relative to the matters currently pending before it,” prevented him from

filing a proper motion for leave to amend the complaint. Salvati had substantial

opportunity before the March 27, 2013 Order was entered to seek leave to amend

his complaint, including several months after receiving notice of Deutsche Bank’s

argument in its motion to dismiss and after the issuance of the Magistrate Judge’s

recommendation. Despite having ample time, he neglected to make such a motion.

                                         17
Thus, we are not persuaded by Salvati’s contention that the District Court hindered

his right to file for leave to amend, and we conclude that the District Court did not

err in dismissing Count VII.

III.   Conclusion

       For the reasons set forth above, we will affirm the District Court’s dismissal

as to Counts I and II with respect to Bank of America and McCabe only, and will

affirm the District Court’s dismissal as to Counts III, V, VI, and VII. We will

reverse and remand the dismissal as to Counts I and II with respect to Deutsche

Bank only and also will reverse and remand the dismissal of Count IV.




                                         18
