No Negligent Misrepresentation Claim Based on Future Event

In Jones v. BAC Home Loans Servicing, LP, No. W2016-00717-COA-R3-CV (Tenn. Ct. App. July 12, 2017), the Court of Appeals affirmed dismissal of a negligent misrepresentation claim.

Plaintiffs were the borrowers on a valid and enforceable mortgage, which was held by defendant. Plaintiffs were in default and had received a notice of foreclosure stating that “they were in arrears in the amount of $9,000.00.” Plaintiffs allege that plaintiff husband spoke with a representative from defendant by phone and offered to pay $7,800 by the end of the week, and that the representative “informed him that if he sent a payment of $6,000.00 he would qualify for a six-month repayment plan that would stop the foreclosure sale.” Plaintiff husband stated that he attempted to wire two separate payments totaling $6,000 to defendant, but that the transfers were declined. The foreclosure proceeded, and plaintiffs filed this action.

Plaintiffs asserted various contract-based claims as well as a claim for negligent misrepresentation. The trial court dismissed all the claims pursuant to defendant’s motion for summary judgment, and the Court of Appeals affirmed.

A plaintiff alleging negligent misrepresentation must show that “(1) the defendant supplied information to the plaintiff; (2) the information was false; (3) the defendant did not exercise reasonable care in obtaining or communicating the information; and (4) the plaintiff justifiably relied on the information.” Further, a plaintiff must show that the defendant was acting “in the course of their business, profession or employment, or in any other transaction in which they have a pecuniary interest,” and “the misrepresentation must consist of a statement of a material past or present fact.”  A statement “concerning future events” cannot support a claim for negligent misrepresentation.

The alleged misrepresentation here was the representative’s assurance that the foreclosure would be postponed if plaintiffs paid $6,000. The Court held that “[t]his promise to forbear is clearly a representation of a future event and not a statement of a material past or present fact.” The Court stated that “[b]ecause the asserted statement relied upon concerns a statement of intention and representation of a future event, it is legally infirm to support a cause of action for negligent misrepresentation.” Accordingly, summary judgment was affirmed.

As this case and many others illustrate, negligent misrepresentation claims are difficult to prove. When considering filing one, pay close attention to the statement upon which your claim is based and be sure it fits within the parameters of this tort.