United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
A. KIMBALL UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendant Citywide Home
Loan's Motion to Dismiss. On May 23, 2018, the court held
a hearing on the motion. At the hearing, Plaintiff was
represented by Brian Jackson, and Defendant Citywide was
represented by Steven Reid. After hearing argument, the court
took the matter under advisement. The court has considered
the memoranda and other materials submitted by the parties,
as well as the law and facts relating to the motions. Now
being fully advised, the court issues the following
Memorandum Decision and Order.
April 2012 to October 2016, Plaintiff Anita Martinez-Trumm
worked as a loan officer for Defendant Citywide Home Loans.
On January 1, 2014, Martinez-Trumm and Citywide entered into
a Loan Officer Agreement (“LOA”) and a Loan
Officer Compensation Agreement (“LOCA”) Addendum
to comply with the compensation laws under the Dodd-Frank
Act. Paragraph 16 of the LOA provided that the parties could
only modify the agreement in a mutually-signed writing that
referenced the agreement. However, the LOCA Addendum, which
set Plaintiff's hourly rate and commission, stated that
“Loan Officer understands and agrees that this Loan
Officer Compensation Agreement Addendum 1 can change at any
time at Citywide's discretion due to Loan Officer's
production, quality, profitability, and other
alleges that while she was employed at Citywide it had a
company-wide policy and protocol to reduce a loan
officer's pay if another employee was hired to assist
that loan officer. As a result of this policy, Plaintiff sent
an email to Citywide in December of 2015, proposing that her
commission rate be reduced from 1.75% to 1.50% so that she
could have an assistant to help her with her workload.
Plaintiff's email also stated, “please let me know
what is needed to make the change.” Citywide responded
to Plaintiff's email: “Let's make sure this
dropping. If so, let's do it!” Plaintiff alleges
that there was never a written modification of the LOA.
However, Citywide changed Plaintiff's commission amount
from 1.75% to 1.5% and Plaintiff received an assistant.
Plaintiff further alleges that Citywide had a policy to pay
other employees' bonuses out of her paycheck but provides
no other details on this practice.
Citywide provided Plaintiff with an assistant there is no
correspondence or communications between Plaintiff and
Citywide related to her commission rate until Plaintiff
separated from her employment with Citywide in October 2016.
At that time, Plaintiff reached out to Citywide about the
issue and Citywide told her that she had agreed to the change
in her compensation amount by requesting it, using the
assistant, and continuing to work while receiving a paycheck
with the lower amount. Citywide's legal counsel also
responded to Plaintiff and told her that she acquiesced to
the modification by requesting it and failing to object to it
while she was employed at Citywide. Citywide also claimed
that it had the right to modify the LOCA at its sole
discretion at any time.
stated that upon termination of employment, Citywide would
pay the loan officer all compensation due and payable as set
forth in the compensation addendum. Plaintiff alleges that
Citywide failed to pay her proper compensation under the LOA
and compensation addendum.
also alleges that Citywide sent out mailers using her name to
attract business after she had terminated her employment at
Citywide. One of Plaintiff's clients emailed Plaintiff at
her Citywide email address and an individual at Citywide, who
claimed to be a long-time partner with Plaintiff, responded
to the email and offered to assist the client in
Plaintiff's absence. However, Plaintiff claims that she
was never a partner with the individual.
brought the present lawsuit against Citywide, alleging that
Citywide improperly changed her commission amount, paid other
employees' bonuses out of her paycheck, and diverted
business from her. Plaintiff's Complaint asserts nine
causes of action: (1) breach of contract; (2) violation of
the Fair Labor Standards Act (FLSA”); (3) violation of
the Utah Pyramid Scheme Act, Utah Code Ann. § 76-6a-1
et seq.; (4) violation of the Utah Payment of Wages
Act (UPWA”), Utah Code Ann. § 34-28-1 et
seq.; (5) violation of the Utah Truth in Advertising Act
(“UTAA”), Utah Code Ann. § 13-11a-1 et
seq.; (6) violation of the Utah Sales Representative
Commission Payment Act (“USRCPA”), Utah Code Ann.
§ 13-44-101 et seq.; (7) conversion; (8) breach
of fiduciary duty; and (9) wrongful appropriation.
Motion to Dismiss
asks this court to dismiss Plaintiff's Complaint, arguing
that all of Plaintiff's claims should be dismissed as a
matter of law because the controlling statute is inapplicable
to Plaintiff's allegations and/or Plaintiff's
allegations do not state a claim for relief.
Breach of Contract
alleges that Citywide breached the agreements she had with it
by unilaterally modifying her commission rate. Citywide
argues that Plaintiff's allegation that it unilaterally
started paying her a lower commission is conclusory and fails
to state a claim based on the face of the Complaint and the
documents referenced in it. While the LOA required a signed
writing to be modified, the LOCA Addendum states that it
supersedes the LOA and that Citywide could ...