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Saying that they can seize protected income, such as social security or disability checks Using abusive language Posing as a police officer to scare you Ignoring a written dispute Need Help With Mgc Mortgage? Call for a Free Case Evaluation Now! MGC Mortgage, Inc.

It was founded in , has 38 employees, and is managed by owner Jenny Blake. It has an F rating with the Better Business Bureau. Need Help With Mgc Mortgage? Gardner turned to her insurance agent and the local HUD office for help.

Finally, on October 22, , Ms. Gardner learned that MGC had her insurance money. But MGC still did not release Ms. Gardner's funds. On March 11, , Ms. MGC was added as a Defendant on August 30, At some point during the pendency of this action, MGC released Ms. Gardner's funds, but she still seeks to recover for conversion, fraud, breach of contract, fraudulent suppression, breach of fiduciary duty, negligence, and wantonness. MGC, the only defendant left, now moves for summary judgment.

Gardner's version of the facts is true, each of those counts suffers a legal deficiency that entitles MGC to judgment as a matter of law. Gardner's claims of conversion Count I and breach of contract Count IV , on the other hand, present genuine questions of material fact, which the court cannot resolve on summary judgment. Accordingly, Ms. Gardner may proceed to trial on those two claims.

Summary judgment is due on five of Ms. Gardner's claims. Fraud Ms. Gardner it did not have her funds when it actually did. Neither gives rise to liability for fraud. The first allegedly fraudulent statement Ms. Gardner identifies comes from a purported contract she had with GMAC which she claims MGC "inherited" that stated "the funds would be released within business days once [Ms. Gardner] returned the forms.

Gardner's inheritance theory, she presents no authority suggesting Alabama law recognizes a cause of action for fraud based on the breach of contractual promises. But MGC cites authority to the contrary: "[I]t is clear that to assert a fraud claim that stems from the same general facts as one's breach-of-contract claim, the fraud claim must be based on representations independent from the promises in the contract and must independently satisfy the elements of fraud.

Land Developers Constr. If MGC broke a contractual promise it made to Ms. Gardner, her remedy is an action for breach of that contract, not an action for fraud. That narrows Ms. Gardner's claim of fraud to a single alleged misrepresentation. Gardner's evidence indicates MGC denied possession of her insurance funds when, in reality, it had received them and placed them in the wrong account. MGC maintains that was nothing more than an "honest mistake" Doc.

But MGC is not liable for fraud merely because it made an untrue statement. Instead, fraud liability arises only if that untrue statement was intended to induce Ms. Gardner to act. Under Alabama law, a defendant is not liable for fraud unless "the fraud whether perpetrated by a misrepresentation or by the suppression of material information [is] directed toward the plaintiff in the sense that the plaintiff was intended to act upon it.

Hebding, So. To that end, the pattern jury instructions would require Ms. Gardner to prove "[t]hat [MGC] intended that [she] rely on the statement" whether the false statement was made intentionally, recklessly, or mistakenly. Alabama Pattern Jury Instructions: Civil Thus, although Ms. Gardner need not necessarily provide evidence MGC knowingly made a false statement when it denied possession of her funds, she must give some evidence that MGC intended that statement to induce her to take action.

Gardner, however, has presented no evidence to that effect. Although her evidence suggests MGC made a false statement when it denied possession of her insurance money, she has never explained what MGC stood to gain from doing so. Gardner identifies several actions she took in purported reliance on MGC's false statement — she made a few phone calls and met with third parties Doc.

Gardner has not met her burden of establishing a genuine question of material fact on her fraud claim. Fraudulent Suppression Similarly, Ms. Gardner cannot prevail on her claim of fraudulent suppression. Even assuming Ms. Gardner's evidence shows MGC concealed a material fact when it denied possession of her insurance funds, that is not enough.

As mentioned above, fraudulent suppression is only actionable when it is "directed toward the plaintiff in the sense that the plaintiff was intended to act upon it. Gardner's evidence does not create a genuine issue of material fact with regard to that point, so summary judgment is due on her claim of fraudulent suppression. Breach of Fiduciary Duty Ms.

Gardner also contends MGC owed her a fiduciary duty, which it breached by failing to promptly release her insurance money. Although she recognizes creditors do not usually owe fiduciary duties to debtors, she insists her case falls within an exception.

It does not. Tunstall, So. There, a creditor made a loan to finance the plaintiff's new home. After it took the creditor a year to install the air conditioner, the plaintiff sued on theories of conversion, breach of trust, and breach of fiduciary duty. On appeal from a jury verdict in the plaintiff's favor, the Alabama Supreme Court reversed because he had not proved conversion.

Breach of that trust could give rise to a claim for breach of fiduciary duty. But the rationale of the Green Tree Acceptance decision does not apply here. In that case, the plaintiff presented evidence sufficient to establish a "declaratory trust," which is "a trust in which a settlor declares himself trustee of property for the benefit of another, the beneficiary.

There is no evidence in this case that MGC held any money for Ms. Gardner's benefit. Instead, MGC claims its motive for holding onto her funds was purely selfish, viz. Gardner would use the money to repair her roof. In fact, the provision of the mortgage that initially allowed MGC to hold Ms. Gardner's funds expressly states that MGC can hold onto insurance proceeds that come from damage to her home "until [MGC] has had an opportunity to inspect [her house] and ensure the work has been completed to [MGC's] satisfaction.

This is not a case like Green Tree Acceptance where a lender offered to take some action to benefit the homeowner. Nor is there evidence that Ms. Gardner put any special trust or faith in MGC; she simply expected MGC to perform its contractual duty and return her money once she filled out the proper forms. MGC held Ms. Gardner's funds to protect its collateral, not to benefit her. Nothing in those circumstances suggests a trust arose, or that MGC assumed the role of a fiduciary.

Accordingly, summary judgment is due on Ms. Gardner's claim for breach of fiduciary duty. Negligence and Wantonness Breach of some legal duty is a fundamental element of claims for both negligence and wantonness. See E. Overlook Mountain Lodge, So.

Gardner identifies two duties she claims MGC breached. Neither gives rise to liability for negligence or wantonness. First, Ms. Gardner's complaint alleges "MGC had a duty to [disburse] the Plaintiff's insurance claim funds.

That duty, however, arose solely from the contractual language of Ms. Gardner's mortgage, and "mere failure to perform a contractual obligation is not a tort. Business Prods. Bank of Am. Second, Ms. Compass Bank, So. Specifically, Ms. Gardner claims MGC failed to comply with its own internal policies regarding follow-ups on customer calls and the inspection of damaged property. But Ms. Gardner cites nothing in Alabama law to suggest those internal policies imposed legal duties on MGC.

True, Alabama does "recognize[ ] the doctrine that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in connection therewith. City of Birmingham, So. But even when that doctrine applies, it does not impose any duty beyond the familiar "duty of acting with due care.

Even then, that duty of care only applies to "one who volunteers to act on behalf of another. Guthrie, So. Thus, although Alabama courts frequently talk of the duty that can arise when one volunteers to act, the undertake-a-duty doctrine does not so much create new legal duties as it emphasizes a familiar one: Even those who gratuitously volunteer to take an action for the benefit of another must exercise due care when doing so.