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Ross v. Quality Homes of McComb, Inc.

United States District Court, S.D. Mississippi, Western Division

January 11, 2018

EARL ROSS and MAXCINE ROSS PLAINTIFFS
v.
QUALITY HOMES OF McCOMB, INC., MISS LOU MOBILE HOME MOVERS, LLC, PLATINUM HOMES, LLC, JOEY HARBIN, and U.S. BANK, N.A. DEFENDANTS

          ORDER AND OPINION

          DAVID BRAMLETTE UNITED STATES DISTRICT JUDGE.

         This cause is before the Court on the Court's Order [Doc. 41');">41');">41');">41');">41');">41');">41');">41] that Plaintiffs Earl and Maxcine Ross show cause why the remaining counts of their Complaint should not be dismissed with prejudice. Having considered the Rosses' response to the Court's Order, U.S. Bank, N.A.'s opposition[1] to the Rosses' response, and applicable statutory and case law, and being otherwise fully informed in the premises, the Court finds as follows:

         I. BACKGROUND

         Buyers of a manufactured home sued an employee of the home's manufacturer and the bank that financed the purchase after inspecting the home and declaring it “uninhabitable.” The Court dismissed with prejudice the portions of the Complaint that advanced legal theories that could not impose liability on these Defendants under any conceivable interpretation of the facts as pleaded. As to the other portions, the Court ruled that the buyers had not properly pleaded any claims, but offered them the chance to explain how the defects in their Complaint could be cured.

         A. The Rosses' Manufactured Home Purchase

         On October 17, 2014, Plaintiffs Earl and Maxcine Ross (the “Rosses”) bought a manufactured home made by Platinum Homes, LLC (“Platinum”) from Quality Homes of McComb, Inc. (“Quality”), a McComb-based retail-seller. [Doc. No. 1, ¶VI][2] U.S. Bank, N.A. (“U.S. Bank”) financed the purchase. [Doc. No. 1, ¶VI]

         On October 30, 2014, the mobile home was delivered to Quality's lot in McComb. [Doc. No. 1, ¶VIII] That same day, the Rosses inspected the home and found it deficient: it contained “a gap in the ceiling where the roof did not come together, ” and “sheetrock [that] had fallen from the wall in the living room.” [Doc. No. 1, ¶IX] The inspection also revealed an unpleasant chemical odor. [Doc. No. 1, ¶VIII]

         B. The Rosses Try to Exchange the Home and Rescind the Loan

         Hoping to swap the home for another, the Rosses visited Quality on November 15, 2014. [Doc. No. 1, ¶ XII] On the visit, the Rosses overheard a phone conversation during which Defendant Harbin, a Platinum manager, said “I am not coming down there to change out nothing for those niggers.” [Doc. No. 1, ¶XII] Ultimately, Quality refused to exchange the home for another. [Doc. No. 1, ¶XIII]

         Next, the Rosses called U.S. Bank hoping to rescind their loan contract. [Doc. No. 1, ¶XV] In late December 2014, the Rosses spoke with a U.S. Bank employee, explained the problems with the home, and asked to rescind the contract. [Doc. No. 1, ¶XV] U.S. Bank declined. [Doc. No. 1, ¶XV]

         C. The Rosses' Suit

         On April 20, 2017, the Rosses sued Harbin and U.S. Bank for (1) breach of fiduciary duties; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (4) fraudulent misrepresentation; (5) “unconscionability”; (6) negligent misrepresentation; (7) violations of the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301 et seq., the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., the Mississippi Consumer Protection Act (“MCPA”), Miss. Code Ann. § 75-24-5; (8) slander; and (9) civil rights violations under 42 U.S.C. § 1983.

         In response, Harbin and U.S. Bank moved to dismiss [Docs. 9, 27] the Complaint under Federal Rule of Civil Procedure 12(b)(6).

         The Court partially granted the motions, dismissing with prejudice all counts except:

• Count I - breach of contract;
• Count II - breach of fiduciary ...

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