W VA Court Says Directions to Stop Making Payments and Refusing to Apply Payments is Breach of Contract

BANK OF AMERICA TAKES ANOTHER HIT:
BANKS MISLEAD BORROWERS WHEN THEY INSTRUCT THEM TO STOP MAKING PAYMENTS AND REFUSE PAYMENTS
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Editor’s Note: We’ve all heard it a million times. “The bank told me to stop making payments in order to get modification or other relief.” It was a blatant lie and it was intended to get the borrower in so deep they couldn’t get out, leading inevitably to foreclosure.

Why would the “bank” want foreclosure? Because they took far more money from investors than they used to fund loans. If the deal fails and dissolves into foreclosure the investors are less likely to probe deeply into the transaction to find out what really happened. The fact is that the banks were all skimming off the top taking as much as 50% f the money from investors and sticking it in their own pockets, using it to gamble and keeping the proceeds of gambling.

If the banks really went the usual route of workouts, deed in lieu, modifications and other relief to borrowers, there would be an accounting night mare for them as eventually the auditing the firms would pick up on the fact that the investment banks were taking far more money than was actually intended to be used for investing in mortgages.

They covered it up by creating the illusion of a mortgage closing in which the named payee on the note and security instrument were neither lenders nor creditors and eventually they assigned the loan to a REMIC trust that had neither received the loan nor paid for it.

In this case the Court takes the bank to task for both lying to the borrower about how much better off they would be if they stopped making payments, thus creating a default or exacerbating it, and the refusal of the bank to accept payments from the borrower. It is a simple breach of contract action and the Court finds that there is merit to the claim, allowing the borrower to prove their case in court.

Another way of looking at this is that if everyone had paid off their mortgages in full, there would still be around $3 trillion owed to the investors representing the tier 2 yield spread premium that the banks skimmed off the top plus the unconscionable fees and costs charged to the accounts.  Where did that money go? See the previous post

This well-reasoned well written opinion discusses the case in depth and represents a treasure trove of potential causes of action and credibility to borrowers’ defenses to foreclosure claims.

 

2013 U.S. Dist. LEXIS 35320, * MOTION TO DISMISS DENIED

JASON RANSON, Plaintiff, v. BANK OF AMERICA, N.A., Defendant.
CIVIL ACTION NO. 3:12-5616
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, HUNTINGTON DIVISION
2013 U.S. Dist. LEXIS 35320

March 14, 2013, Decided
March 14, 2013, Filed 

CORE TERMS:modification, foreclosure, borrower, citations omitted, mitigation, misrepresentation, servicer, consumer, lender, cause of action, contractual, guaranteed, mortgage, estoppel, contract claim, default, special relationship, reinstatement, collection, quotation, breached, notice, factual allegations, breach of contract, force and effect, indebtedness, thereunder, foreclose, veteran’s, manual

COUNSEL: [*1] For Jason Ranson, Plaintiff: Daniel F. Hedges 1, Jennifer S. Wagner, LEAD ATTORNEYS, MOUNTAIN STATE JUSTICE, INC., Charleston, WV.

For Bank of America, N.A., Defendant: Carrie Goodwin Fenwick, Victoria L. Wilson, LEAD ATTORNEYS, GOODWIN & GOODWIN, Charleston, WV.

JUDGES: ROBERT C. CHAMBERS, CHIEF UNITED STATES DISTRICT JUDGE.

OPINION BY: ROBERT C. CHAMBERS

OPINION

MEMORANDUM OPINION AND ORDER

Pending before the Court is a Motion to Dismiss by Defendant Bank of America, N.A. (BANA). ECF No. 4. Plaintiff Jason Ranson opposes the motion. For the following reasons, the Court DENIES, in part, and GRANTS, in part, Defendant’s motion.

I.

FACTUAL AND PROCEDURAL HISTORY

On September 19, 2012, Defendant removed this action from the Circuit Court of Putnam County based upon diversity of jurisdiction. See 28 U.S.C. §§ 1332 and 1441. In his Complaint, Plaintiff asserts that he took out a mortgagewith Countrywide Home Loans, Inc. to purchase a house in 2007. The loan was originated pursuant to the Department of Veterans Affairs (VA) Home Loan Guaranty Program. Plaintiff alleges the loan “contained a contractual guarantee by the . . . (VA), which requires—as incorporated into the contract—that Defendant comply with regulations and [*2] laws governing VA guaranteed loans, including those regulations governing Defendant’s actions in the event of the borrower’s default” as he was, and continues to be, on active duty with the United States Army. Compl. at ¶5, in part. Defendant is the current servicer and holder of the loan.

In 2009, Plaintiff became two months behind on the loan. Plaintiff asserts that Defendant informed him he was eligible for a loan modification and requested he submit certain documentation to have the modification finalized. Plaintiff claims that Defendant also told him to stop making any payments as they would interfere with the finalization process. Plaintiff states he had the means to make the two delinquent payments at that time or he could have sought refinancing or taken other actions to save his house and credit. However, he relied upon Defendant’s statements and stopped making payments, pending its assurance that he was eligible for a modification. In fact, Plaintiff states that Defendant returned his last payment without applying it to his account.

Over the next several months, Plaintiff asserts he repeatedly submitted the documentation requested by Defendant for the modification process. [*3] Plaintiff also contacted Defendant on a weekly basis for updates. Plaintiff claims he was assured by Defendant it would not foreclose, and Defendant discouraged him from calling by stating it would delay finalization of the modification. Approximately eight months after the process began, Plaintiff contends that Defendant informed him the loan would not be modified because VA loans do not qualify for assistance. According to Plaintiff, Defendant nevertheless requested that he submit documentation for another modification. Plaintiff states he complied with the request but, approximately six months later, Defendant again told him the modification was denied because he had a VA loan. Defendant further told him he should vacate the property because it was going to foreclose. Plaintiff asserts he asked Defendant if he could short sell the house, but Defendant said no and stated the only way he could save his house would be by full reinstatement. As fourteen months had passed since he was told to stop making payments, Plaintiff states that he could not afford to pay the full amount owed.

As a result of these alleged activities, Plaintiff filed this action, alleging five counts of action. [*4] Count I is for breach of contract, Count II is for negligence, Count III is for fraud, Count IV is for estoppel, and Count V is for illegal debt collection. Defendant now moves to dismiss each of the counts.

II.

STANDARD OF REVIEW

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court disavowed the “no set of facts” language found in Conley v. Gibson, 355 U.S. 41 (1957), which was long used to evaluate complaints subject to 12(b)(6) motions. 550 U.S. at 563. In its place, courts must now look for “plausibility” in the complaint. This standard requires a plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555(internal quotation marks and citations omitted). Accepting the factual allegations in the complaint as true (even when doubtful), the allegations “must be enough to raise a right to relief above the speculative level . . . .” Id. (citations omitted). If the allegations in the complaint, assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . .be exposed [*5] at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal quotation marks and citations omitted).

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained the requirements of Rule 8 and the “plausibility standard” in more detail. In Iqbal, the Supreme Court reiterated that Rule 8 does not demand “detailed factual allegations[.]” 556 U.S. at 678(internal quotation marks and citations omitted). However, a mere “unadorned, the-defendant-unlawfully-

harmed-me accusation” is insufficient. Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility exists when a claim contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The Supreme Court continued by explaining that, although factual allegations in a complaint must be accepted as true for purposes of a motion to dismiss, this tenet does not apply to legal conclusions. Id. “Threadbare recitals of the elements [*6] of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a context-specific analysis, drawing upon the court’s own judicial experience and common sense. Id. at 679. If the court finds from its analysis that “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]‘-‘that the pleader is entitled to relief.'” Id. (quoting, in part, Fed. R. Civ. P. 8(a)(2)). The Supreme Court further articulated that “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id.

III.

DISCUSSION

A.

Breach of Contract

In Count I, Plaintiff alleges that the Deed of Trust and the VA Guaranteed Loan and Assumption Policy Rider provide that “Defendant’s rights upon the borrower’s default are limited by Title 38 of the United States Code and any regulations issued thereunder.” [*7] Compl., at ¶22. According to Plaintiff, the contract also provides that Defendant must apply all payments to his account. Plaintiff asserts Defendant breached the contract by (1) discouraging him from making payments, (2) returning his payments, (3) allowing the accumulation of arrears until it was impossible for him to reinstate the loan, (4) initiating foreclosure and failing to grant a modification after assuring him it would be granted, and (5) “failing to comply with VA regulations and guidance requiring, inter alia, that the Defendants [sic] consider Plaintiff for a variety [of] loss mitigation options, and provide notice of such rejection(s) in writing, prior to foreclosure.” Id. at ¶24(d).

To avoid dismissal of a breach of contract claim under Rule 12(b)(6), West Virginia law requires: “the existence of a valid, enforceable contract; that the plaintiff has performed under the contract; that the defendant has breached or violated its duties or obligations under the contract; and that the plaintiff has been injured as a result.” Executive Risk Indem., Inc. v. Charleston Area Med. Ctr., Inc., 681 F. Supp.2d 694, 714 (S.D. W. Va. 2009) (citations omitted). For a claim of breach [*8] of contract to be sufficient, “a plaintiff must allege in his complaint ‘the breach on which the plaintiffs found their action . . . [and] the facts and circumstances which entitle them to damages.'” Id. In this case, Defendant argues Plaintiff has failed to sufficiently allege a breach of contract because he has not specified what specific VA regulations purportedly were violated and, in any event, the regulations only require the foreclosure be conducted in accordance to West Virginia law. As Defendant maintains it complied with the West Virginia law, Defendant asserts it has not breached the contract.

Plaintiff does not dispute that neither the contracts nor West Virginia law require a loan modification. However, Plaintiff argues that the VA has promulgated regulations to limit foreclosures of loans it has guaranteed and Defendant did not comply with those requirements. Plaintiff quotes from the VA Guaranteed Loan and Assumption Policy Rider, which provides, in part:

If the indebtedness secured hereby be guaranteed or insured under Title 38, United States Code, such Title and Regulations issued thereunder and in effect on the date hereof shall govern the rights, duties and liabilities [*9] of Borrower and Lender. Any provisions of the Security Instrument or other instruments executed in connection with said indebtedness which are inconsistent with said Title or Regulations, including, but not limited to, the provision for payment of any sum in connection with prepayment of the secured indebtedness and the provision that the Lender may accelerate payment of the secured indebtedness pursuant to Covenant 18 of the Security Instrument, are hereby amended or negated to the extent necessary to confirm such instruments to said Title or Regulations.

VA Guar. Loan and Assumption Policy Rider, at 2, ECF No. 4-1, at 15. Specifically, Plaintiff cites 38 U.S.C. § 36.4350(f), (g), and (h), which requires, inter alia, Defendant to send Plaintiff a letter outlining his loss mitigation options after he fell behind on his payments and, under certain circumstances, have a face-to-face meeting with Plaintiff. Likewise, 38 C.F.R. § 36.4319 provides incentives to servicers to engage in loss mitigation options in lieu of foreclosure, and 38 C.F.R. § 36.4315expressly allows a loan modification under certain circumstances if it is in veteran’s and the Government’s best interest. Plaintiff also [*10] cites a Servicer Guide for VA guaranteed loans, which contains similar loss mitigation considerations. 1 Plaintiff states that all these requirements are incorporated into the contract, and Defendant violated the contract by stating he could not receive a loan modification because he had a VA loan; by telling him to stop making payments rather than placing him on a repayment plan; by not timely evaluating the loan and considering him for loss mitigation and, instead, placing him in foreclosure; and by refusing to allow Plaintiff to apply for a compromise sale because Defendant had started foreclosure. Moreover, Plaintiff asserts Defendant violated his right to reinstate and failed to exercise its discretion in good faith by refusing his payment; telling him to stop making payments; informing he was qualified for loan modification, and then denying the modification; providing him conflicting, inconsistent, and inaccurate information about his account; refusing to consider a short sale; and never providing him a written explanation of why loss mitigation was denied.

FOOTNOTES

1 U.S. Dept. of Veterans Affairs, VA Servicer Guide 6 (July 2009), available at http:www.benefits.va.gov/homeloans/docs/va_servicer_guide.pdf.

Defendant [*11] responds by asserting that the VA regulations and the handbook are permissive in nature, not mandatory, and the VA Servicer Guide is not binding. See VA Servicer Guide, at 4 (“This manual does not change or supersede any regulation or law affecting the VA Home Loan Program. If there appears to be a discrepancy, please refer to the related regulation or law.”); see also 38 C.F.R. § 36.4315(c)(stating “[t]his section does not create a right of a borrower to have a loan modified, but simply authorizes the loan holder to modify a loan in certain situations without the prior approval of the Secretary” 38 U.S.C. § 36.4315(c)). Thus, Defendant argues they establish no affirmative duty for it to act. In support of its position, Defendant cites several older cases which held certain regulations issued by the VA and other governmental agencies do not have the force and effect of law. 2

FOOTNOTES

2 See First Family Mortg. Corp. of Fl. v. Earnest, 851 F.2d 843, 844-45 (6th Cir. 1988)(finding that mortgagors could not state a cause of action based on VA publications against the VA for allegedly failing to monitor lender servicing of VA-backed loans); Bright v. Nimmo, 756 F.2d 1513, 1516 (11th Cir. 1985) [*12] (rejecting the plaintiff’s argument that he has an implied cause of action against the VA or lender based upon the VA’s manual and guidelines); United States v. Harvey, 659 F.2d 62, 65 (5th Cir. 1981)(finding that the VA manual did not have the force and effect of law by itself and it was not incorporated into the promissory notes or deeds to support a contract claim); Gatter v. Cleland, 512 F. Supp. 207, 212 (E.D. Pa. 1981)(holding “that the decision to implement a formal refunding program is one that squarely falls within the committed to agency discretion exception [of the VA] and is not subject to judicial review” (footnote omitted)); and Pueblo Neighborhood Health Ctrs., Inc. v. U.S. Dep’t of Health and Human Serv., 720 F.2d 622, 625 (10th Cir. 1983)(finding a pamphlet issued by the Department of Health and Human Services, referred to as a Grant Application Manual, was not the product of formal rule-making and did not have the force and effect of law).

However, upon review of those cases, the Court finds that they generally involve situations in which the plaintiffs were attempting to assert a cause of action based upon the regulation itself, rather than as a breach of contract [*13] claim. An action based on a contract involves a much different legal theory than one based solely on enforcement of a regulation apart from a contractual duty. Indeed, Plaintiff cites a number of comparable mortgagecases in which courts permitted homeowners to pursue claims against lenders based upon regulations issued by the Federal Housing Authority (FHA) where it was alleged that the parties contractually agreed to comply with those regulations. As explained by the Court in Mullins v. GMAC Mortg., LLC, No. 1:09-cv-00704, 2011 WL 1298777, **2-3 (S.D. W. Va. Mar. 31, 2011), plaintiffs, who allege a straightforward breach of contact claim, “are not, as defendants would have the court believe, suing to enforce HUD regulations under some vague and likely non-existent cause of action allowing a member of the public to take upon himself the role of regulatory enforcer. These two theories of recovery are distinct and unrelated,” and the Court held the plaintiffs could proceed on their express breach of contract claim. 2011 WL 1298777, *3. 3Upon review, this Court is persuaded that the same reasoning controls here. Therefore, the Court will not dismiss Plaintiff’s contract claim based [*14] upon Defendant’s argument that the regulations and handbook do not have full force and effect of law because Plaintiff has alleged the contract incorporates the limitations set by the regulations. See Compl., at ¶22 (“The contract provides that Defendant’s rights upon the borrower’s default are limited by Title 38 of the United States Code and any regulations issued thereunder.”).

FOOTNOTES

3 See also Kersey v. PHH Mortg. Corp., 682 F. Supp.2d 588, 596-97 (E.D. Va. 2010), vacated on other grounds, 2010 WL 3222262 (E.D. Va. Aug. 13, 2010) (finding, in part, that the plaintiff sufficiently alleged a claim that the defendant breached an FHA regulation which was incorporated in a Deed of Trust); Sinclair v. Donovan, Nos. 1:11-CV-00010, 1:11-CV-00079, 2011 WL 5326093, *8 (S.D. Ohio Nov. 4, 2011) (“find[ing] that the HUD-FHA regulations concerning loss mitigation are enforceable terms of the mortgagecontract between the parties and that Plaintiffs cannot be denied the benefit of these provisions by virtue of the fact of simple default”); and Baker v. Countrywide Home Loans, Inc., 3:08-CV-0916-B, 2009 WL 1810336, **5-6 (N.D. Tex. June 24, 2009) (stating that a “failure to comply with the [HUD] regulations [*15] made part of the parties’ agreement may give rise to liability on a contact theory because the parties incorporated the terms into their contact”).

Defendant further argues, however, that some of the regulations cited by Plaintiff are irrelevant to this case because, for instance, a face-to-face meeting with a borrower is required only under certain circumstances which do not exist in this case. See 38 C.F.R. § 36.4350(g)(iii). In addition, Defendant asserts that, in any event, it did not breach the contract because it had no duty to engage in loss mitigation and it otherwise complied with the contract’s terms. The Court finds, however, that whether or not Defendant violated any of the terms of the contract is a matter best resolved after discovery. Therefore, at this point, the Court finds that Plaintiff has sufficiently alleged a breach of contract claim and, accordingly, DENIES Defendant’s motion to dismiss the claim. 4

FOOTNOTES

4Plaintiff obviously disagrees with Defendant’s argument and filed a “Notice of Additional Authority” disputing Defendant’s position that the VA regulations require holders to evaluate borrowers for loss mitigation. Plaintiff cites the Veterans Benefits Administration, [*16] Revised VA Making Home Affordable Program, Circular 26-10-6 (May 24, 2010), which states, in part: “Before considering HAMP-style modifications, servicers must first evaluate defaulted mortgages for traditional loss mitigation actions cited in Title 38, Code of Federal Regulations, section 36.4819 (38 CFR § 36.4819); i.e., repayment plans, special forbearances, and traditional loan modifications. . . . If none of the traditional home retention loss mitigation options provide an affordable payment, the servicer must evaluate the loan for a HAMP-style modification prior to deciding that the default is insoluble and exploring alternatives to foreclosure.” (Available at http://www.benefits.va.gov/HOMELOANS/circulars/26_10_6.pdf).

B.

Negligence and Fraud

Defendant next argues that Plaintiff’s claim for negligence and fraud in Counts II and III, respectively, are duplicative of his illegal debt collection claim in Count V under the West Virginia Consumer Credit Protection Act (WVCCPA) and cannot survive because Plaintiff fails to allege Defendant owed him a special duty beyond the normal borrower-servicer relationship. Therefore, Defendant asserts Counts II and III should be dismissed.

In Bailey [*17] v. Branch Banking & Trust Co., Civ. Act. No. 3:10-0969, 2011 WL 2517253 (S.D. W. Va. June 23, 2011), this Court held that the West Virginia Supreme Court in Casillas v. Tuscarora Land Co., 412 S.E.2d 792 (W. Va. 1991), made it clear a plaintiff can pursue claims under the WVCCPA and common law at the same time. 2011 WL 2517253, *3. The Court reasoned that “[i]t would be contrary to both the legislative intent of the WVCCPA and the whole crux of Casillas if the Court were to preclude consumers from bringing actions for violations of the WVCCPA and common law merely because the claims are based upon similar facts.” Id. The Court found that “[n]either the WVCCPA nor Casillasmakes a consumer choose between the two options. A consumer clearly can choose to pursue both avenues provided “separate” claims are set forth in a complaint.” Id.

However, under West Virginia law, a plaintiff “cannot maintain an action in tort for an alleged breach of a contractual duty.” Lockhart v. Airco Heating & Cooling, 567 S.E.2d 619, 624 (W. Va. 2002)(footnote omitted). Rather, “[t]ort liability of the parties to a contract arises from the breach of some positive legal duty imposed by law because of the relationship [*18] of the parties, rather than a mere omission to perform a contract obligation.” Id. (emphasis added). Whether a “special relationship” exists between the parties beyond their contractual obligations is “determined largely by the extent to which the particular plaintiff is affected differently from society in general.” Aikens v. Debow, 541 S.E.2d 576, 589 (W. Va. 2000). “In the lender-borrower context, courts consider whether the lender has created such a ‘special relationship’ by performing services not normally provided by lender to a borrower.” Warden v. PHH Mortgage Corp., No. 3:10-cv-00075, 2010 WL 3720128, at *9 (N.D. W. Va. Sept. 16. 2010 (citing Glascock v. City Nat’l Bank of W. Va., 576 S.E.2d 540, 545-56 (W. Va. 2002) (other citation omitted)).

Here, Plaintiff’s negligence claim is quite simple. He alleges that, where “Defendant engaged in significant communications and activities with Plaintiff[] and the loan, Defendant owed a duty to Plaintiff to provide him with accurate information about his loan account and its obligations and rights thereunder.” Compl., at ¶27. Next, Plaintiff asserts “Defendant[] breached that duty by instructing Plaintiff not to make payments, advising [*19] Plaintiff that he would receive a loan modification, and then instead allowing arrears to accrue for months and ultimately denying Plaintiff[] assistance and pursuing foreclosure.” Id. at ¶28. Upon review of these allegations, the Court finds Plaintiff has failed to allege any positive legal duty beyond Defendant’s purported contractual obligations. There is nothing about these allegations that creates a “special relationship” between the parties. Indeed, a duty to provide accurate loan information is a normal service in a lender-borrower relationship.

In support of their claim Plaintiff relies, inter alia, on Glasock v. City National Bank of West Virginia, 576 S.E.540 (W. Va. 2002), where the West Virginia Supreme Court found that a special relationship existed between a lender and the borrowers. In Glascock, the bank maintained oversight and was significantly involved in the construction of the borrowers’ house. The bank possessed information that there were substantial problems with the house, but it failed to reveal those problems to the borrowers. 576 S.E.2d at 545. The West Virginia Supreme Court found that the bank’s significant involvement in the construction created a special [*20] relationship between the parties which carried “with it a duty to disclose any information that would be critical to the integrity of the construction project.” Id. at 546 (footnote omitted).

To the contrary, Plaintiff’s negligence claim in this case rests merely on the fact Defendant had a duty to provide him accurate information about the loan and failed to do so. Plaintiff has failed to sufficiently allege any facts which support a special relationship between the parties as existed in Glascock. Therefore, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s negligence claim in Count II.

Turning next to Plaintiff’s fraud claim, Defendant argues the claim must be dismissed because it fails to meet the heightened pleading standard found in Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b)provides that, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). Under this heightened pleading standard, a plaintiff is required to “at a minimum, describe the time, place, and contents of the false [*21] representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008) (quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999))(internal quotation marks omitted). In other words, the plaintiffs must describe the “‘who, what, when, where, and how’ of the alleged fraud.” Id. (quoting U.S. ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 384 (5th Cir. 2003) (other citation omitted)).

In his Complaint, Plaintiff alleges that he had trouble making his mortgage payments around 2009. Compl, at ¶6. When he was approximately two months behind on his payments, Defendant informed him that he qualified for a loan modification, but he needed to complete the necessary paperwork to have it finalized. Id. at ¶7(a). “At this time,” Defendant also informed Plaintiff not to make any more payments until the modification was finalized. Id. at ¶7(b). About eight months later, Defendant told Plaintiff that he did not qualify for a modification, but Defendant instructed him to submit documentation for another modification. Id. at [*22] ¶13. After approximately six more months passed, Plaintiff was notified again that he was being denied assistance. Id. at ¶14. Plaintiff further alleges that, before May of 2012, Defendant never gave him “a written decision on his loan modification applications or any explanation for why he had denied him for assistance, other than its statements by telephone that he did not qualify for assistance because he had a VA loan.” Id. at ¶18.

In addition to these alleged facts, Plaintiff specifically states in his cause of action for fraud that “[i]n or around 2009,” Defendant told him to stop making payments and it would modify his loan rather than pursue foreclosure. Id. at ¶31. Plaintiff asserts these “representations were false and material,” and they were made knowingly, recklessly, and/or intentionally. Id. at ¶¶32-33. Plaintiff further claims he detrimentally relied upon these misrepresentations by stopping his payments and not attempting reinstatement, after which Defendant sought foreclosure. Id. at ¶¶34-35.

In considering these allegations, the Court is mindful of the fact it should be hesitant “to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant [*23] has been made aware of the particular circumstances for which she will have to prepare a defense at trial, and (2) that plaintiff has substantial prediscovery evidence of those facts.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999). Here, the Court finds that Plaintiff adequately alerts Defendant as to “the time, place, and contents of the false representation[.]” U.S. ex rel. Wilson, 525 F.3d at 379(internal quotation marks and citation omitted). Plaintiff clearly alleges the fraudulent activity consisted of Defendant instructing him to stop making payments and assuring him he would receive a loan modification instead of foreclosure. He also asserts the representations were made over the telephone and occurred in 2009, when his payments were two months in arrears, and before Defendant returned his payment. In addition, Plaintiff states that he continued to call Defendant approximately once a week and was assured that it would not proceed with foreclosure. Compl., at ¶12(a), (b), and (c). Given this information, Defendant should be able to prepare its defense based upon the allegations made. In addition, the allegations provide enough information that [*24] Defendant also should be able to identify and review its customer service notes, call logs, account records, and any phone recordings it may have during the specified time period. Thus, the Court DENIES Defendant’s motion to dismiss Plaintiff’s claim for fraud.

C.

Estoppel

Defendant further argues that Plaintiff’s claim in Count IV for estoppel must be dismissed. To maintain a claim for estoppel in West Virginia, a plaintiff must show:

[(1)] a false representation or a concealment of material facts; [(2)] it must have been made with knowledge, actual or constructive of the facts; [(3)] the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; [(4)] it must have been made with the intention that it should be acted on; and [(5)] the party to whom it was made must have relied on or acted on it to his prejudice.

Syl. Pt. 3, Folio v. City of Clarksburg, 655 S.E.2d 143 (W. Va. 2007) (quoting Syl. Pt. 6, Stuart v. Lake Washington Realty Corp., 92 S.E.2d 891 (W. Va. 1956)). Defendant asserts Plaintiff had actual knowledge via correspondence it sent to Plaintiff that he was not guaranteed loan assistance and loan assistance would not impact Defendant’s [*25] right to foreclose. Defendant attached the correspondence to its Motion to Dismiss as Exhibit D. In addition, Defendant argues that Plaintiff admits to missing two payments before the alleged misrepresentations occurred so he cannot state he relied upon those alleged misrepresentations in failing to make his payments.

“[W]hen a defendant attaches a document to its motion to dismiss, ‘a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.’ ” Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). In this case, Plaintiff asserts that, “at this point there is no evidence that the letter was actually sent to or received by Plaintiff, nor has Plaintiff had the opportunity to present mailings, call logs, or testimony supporting his claim.” Pl.’s Res. in Opp. to Def.’s Mot. to Dis., ECF No. 7, at 16. 5Therefore, the Court will not consider the letter. Likewise, the Court finds no merit to the argument that Plaintiff’s admission that he was two months [*26] behind on his loan extinguishes his estoppel claim. It is clear from the Complaint that Plaintiff’s claim is that he relied upon the alleged misrepresentations after he was two months delinquent. Accordingly, the Court DENIES Defendant’s motion to dismiss the estoppel claim.

FOOTNOTES

5In addition, the Court notes that the letter appears undated and Defendant sometimes refers to it as a 2009 letter and sometimes as a 2010 letter. At the top right-hand side of the letter, there is a statement providing: “Please complete, sign and return all the enclosed documents by December 5, 2009.” Exhibit D, ECF No. 4-4, at 1.

D.

WVCCPA

Finally, Defendant asserts Plaintiff’s claim under the WVCCPA in Count V must be dismissed because it fails to meet the requirements of Rules 8(a)(2) of the Federal Rules of Civil Procedure. Rule 8(a)(2)provides that “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Defendant argues that Plaintiff fails to meet this requirement because he merely pled a legal conclusion that Defendant engaged in illegal debt collection and he does not plead sufficient [*27] factual content to support that conclusion. In addition, Defendant states it had a contractual right to return Plaintiff’s partial payment so returning the payment cannot support a WVCCPA claim.

Plaintiff, however, argues that his claims under the WVCCPA are based on three grounds. First, Plaintiff asserts Defendant used fraudulent, deceptive, or misleading representations to collect the debt or get information about him, in violation of West Virginia Code § 46A-2-127. 6 Second, he claims that Defendant used unfair or unconscionable means to collect the debt, in violation of West Virginia Code § 46A-2-128. 7 Third, Plaintiff contends that Defendant’s refusal to apply payments to his account violated West Virginia Code § 46A-2-115. Plaintiff then argues that the first two claims are sufficiently supported in opposition to a motion to dismiss based upon his allegations that (1) Defendant told him he qualified for loan modification and would receive one if he completed the requested financial information; (2) Defendant told him to stop making payments because it would interfere with the modification process, but in reality it increased the likelihood of foreclosure; (3) Defendant assured [*28] Plaintiff it would not foreclose on his home during the time the loan modification application was being processed; (4) Defendant ultimately represented it could not modify the loan because it was a VA loan; and (5) Defendant would not consider a short sale of the house and, instead, proceeded with foreclosure. Plaintiff argues that each of these misrepresentations made by Defendant were intended to collect financial information about him through the modification process or collect the debt via foreclosure. He also states the delay and improper refusal of payments greatly increased the amount he was in arrears, which allowed Defendant to attempt to collect the debt through foreclosure.

FOOTNOTES

6Section 127 provides, in part: “No debt collector shall use any fraudulent, deceptive or misleading representation or means to collect or attempt to collect claims or to obtain information concerning consumers.” W. Va. Code § 46A-2-127, in part.

7Section 128 states, in part: “No debt collector shall use unfair or unconscionable means to collect or attempt to collect any claim.” W. Va. Code §46A-2-128, in part.

Upon consideration of these allegations, the Court finds they are sufficient to state a claim [*29] under the WVCCPA. As stated by the Honorable Thomas E. Johnston stated in Koontz v. Wells Fargo, N.A., Civ. Act. No. 2:10-cv-00864, 2011 WL 1297519 (S.D. W. Va. Mar. 31, 2011), West Virginia “§ 46A-2-127applies to both ‘misrepresentations made in collecting a debt’ and ‘misrepresentations . . . [made] when obtaining information on a customer.'” 2011 WL 1297519, at *6. Therefore, allegations that a financial institution misrepresented to the borrower that it would reconsider a loan modification and, thereby, obtained additional financial information from the borrower, are sufficient to state a claim. Id. Likewise, the Court finds the allegations are sufficient to state a claim that Defendant used “unfair or unconscionable means to collect or attempt to collect any claim” pursuant to West Virginia Code §46A-2-128, in part. Cf. Wilson v. Draper v. Goldberg, P.L.L.C., 443 F.3d 373, 376 (4th Cir. 2006)(stating “Defendants’ actions surrounding the foreclosure proceeding were attempts to collect that debt” under the Fair Debt Collection Practices Act (citations omitted)). 8

FOOTNOTES

8 Defendant asserts that a debt collection does not give rise to a claim under the WVCCPA. Citing Spoor v. PHH Mortgage [*30] Corp., Civ. Act. No. 5:10CV42, 2011 WL 883666 (N.D. W. Va. Mar. 11, 2011). The Court has reviewed Spoorand finds that it primarily focused only on the plaintiff’s request for a loan modification with respect to her WVCCPA claims. The district court in Spoor stated that the defendant’s consideration of the request is not an attempt to collect a debt. 2011 WL 883666, at *7. In the present case, however, the allegations Plaintiff argues supports his claim extend beyond a mere “request” for a modification. Moreover, the Court finds that, to the extent Spoor is contrary to the reasoning in Wilson and Koontz, the Court declines to apply it to this case.

With respect to Plaintiff’s third claim that Defendant illegally returned his payment pursuant to West Virginia Code § 46A-2-115(c), this provision states:

All amounts paid to a creditor arising out of any consumer credit sale or consumer loan shall be credited upon receipt against payments due: Provided, That amounts received and applied during a cure period will not result in a duty to provide a new notice of right to cure; and provided further that partial amounts received during the reinstatement period set forth in subsection (b) of this [*31] section do not create an automatic duty to reinstate and may be returned by the creditor. Defaultcharges shall be accounted for separately; those set forth in subsection (b) arising during such a reinstatement period may be added to principal.

W. Va. Code § 46A-2-115(c). Plaintiff argues that § 46A-2-115(b)defines the reinstatement period as the time “beginning with the trustee notice of foreclosure and ending prior to foreclosure sale,” and he made clear it clear in his Complaint that Defendant returned his payment prior to the requesting a trustee notice of the foreclosure sale. See Compl., at ¶¶7 & 10. Defendant responds by stating that it was within its contractual right to refuse the payment. However, West Virginia Code § 46A-1-107makes it clear that, “[e]xcept as otherwise provided in this chapter, a consumer may not waive or agree to forego rights or benefits under this chapter or under article two-a, chapter forty-six of this code.” W. Va. Code 46A-1-107. Therefore, upon review, the Court finds that Plaintiff’s claim is sufficient to survive a motion to dismiss. Thus, for the foregoing reasons, the Court DENIES Defendant’s motion to dismiss Count V for alleged violations [*32] of the WVCCPA.

V.

CONCLUSION

Accordingly, for the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss Plaintiff’s claims for breach of contract, fraud, estoppel, and violations of the WVCCPA. However, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s negligence claim.

The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to all counsel of record and any unrepresented parties.

ENTER: March 14, 2013

/s/ Robert C. Chambers

ROBERT C. CHAMBERS, CHIEF JUDGE

40 Responses

  1. SECURITIES FRAUD IS BREACH OF CONTRACT & A BREACH OF OUR NATIONAL SECURITY…

  2. [...] W VA Court Says Directions to Stop Making Payments and Refusing to Apply Payments is Breach of Cont… [...]

  3. Absolute BIG LIES ….. by IMPOSTERS as usual. This is precisely what the criminal Politicians always do. I have not lost anything but in fact, have gained a lot of knowledge. Because of that, I have the ability to expose the criminals & the traitors. You imposters try to shoot the messenger with no facts and baseless accusations day in & day out…but the facts don’t lie.

    INVESTING IN SECURITIES FRAUD IS NOT OWNERSHIP….& IT IS IN FACT CRIMINAL.

    THE TRUTH IS NOW UNDENIABLE …

    The politicians are traitors who have used Investment as a weapon to rob the American people of a quadrillion dollars.

    AS A RESULT OF NO CRIMINAL PROSECUTIONS OF THESE CROOKS….ALL IMPOSTORS, CROOKS & TRAITORS ARE BEING REVEALED BOTH FOREIGN & DOMESTIC.

  4. Keep your constant criticism of everyone and everything for yourself. And leave me out of your imbecile rants. I believe Abby is right: you’ve already lost everything and now, you’re trying to save the non-salvageable.

  5. [...] Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud Tagged: borrower, breach of contract, breached, cause of action, citations omitted, collection, consumer, contract claim, contractual, default, estoppel, factual allegations, FEDERAL DISTRICT COURT, force and effect, foreclose, foreclosure, guaranteed, indebtedness, lender, manual, misrepresentation, mitigation, modification, Mortgage, notice, quotation, RANSON V BANK OF AMERICA, reinstatement, servicer, special relationship, thereunder, VETERANS, West Virginia Livinglies’s Weblog [...]

  6. MEDIA REPORTING … SENATE DROPS ASSAULT WEAPONS BAN…

  7. Re Symoniak..she is telling people nothing new… She sold out by saying she was paying the crooks any money out of her “settlement” … I now question her motives….I wouldn’t pay these crooks another penny or tell anyone they should. It appears she is not being completely honest and someone put her up to that stunt. It’s the pot calling the kettle black again. The whole bad bene thing … I think she is the bad bene.

  8. This isn’t our Government Christine….this is an International Bankster Corp who have hijacked our Constitutional Republic. We The People are absolutely not their constituents and they are liars for saying they are. They don’t work or speak for us. They robbed us of a quadrillion dollars….$60.4 trillion more since 2008 and 20 + million of our properties.

    Don’t you dare call them any part of US or our Constitutional Republic. They are our enemies who declared an open secret war on US and our Constitutional Republic and declared open secret martial law on 9/11 on We The People. These crooks killed thousands of innocent people just to rob us in 2008….they want totalitarianism ..they can all go to hell.

  9. Now the oligarchs & plutocrats want to force health screenings to CVS workers or the Corp of crooks will fine them….I certainly don’t want a Corporate Bank going sniffing around me…

    How about this one….secret blood drive at the H.S…. 17 year old minors don’t need parental permission to donate their blood… that doesn’t sound right.

  10. Really christine…? The drugs kept the country afloat during the fake 2008 financial crisis…? The only financial crisis was the Wall Street Bank robbery of our wealth in their manufactured stock market “crash” in 2008…..The bank owner/investors and their perps on Wall Street got caught Insider Trading the market into freefall. It was the biggest robbery and transfer of our wealth to Wall Street to the Corporate Bank plutocrats & oligarchs in history.

  11. There are no laws that protect the Big Banks Christine. The Legal Rights and the Laws that protect every American are being ignored by these commie crooks, sheisters and hoodlums. They are simply being allowed by the traitor politicians to steal everything from We The People.

  12. If you don’t know these crooks funded Hitler by now, and the majority of these politicians are open & secret commies than you just don’t want to see it. The Jesuits are secretly and openly trying to install totaliarianism via the world monopoly of Gold Oil & Drugs via the Communists Plutocrats and Oligarchs AKA the World Bank Corp. The so called “new world pope” is the first openly Jesuit pope. He has Italian parents and is of the Spanish monarch bloodline or some b.s. like that. Whatever, he is a figure head for what is really going on in the world…The big fat phony struggle between the socialist/commies..& the totalitarians..the Aldobrandinis v the Borgias…the Italians v the Spanish…they are all evil and the holy grail for both is totalitarianism …. they have all been sneaking it in since our inception … the Anglo Saxon protestants burned the monarchs with the U.S. CONSTITUTION/U.S. BILL OF RIGHTS…and the monarchs want revenge. That’s why the nihilists are here to destroy our Constitutional Republic…the European monarchs wanted us to believe Russia was no longer communist so they could reel us in under their secret concordat with Rome … the BRICS are an open secret communist block who pretend they are not a part of the New World Order but they are all in the sack together. They are all unconstitutional and illegal crooks who have stolen a QUADRILLION dollars from us and handed We The People the bill for their robbery of US. Screw them.

  13. America has not been sold to anybody Christine ….ALL the investors were sold a ticket to ride…. not ownership of anything. As CNBC said….Wall Street does not own anything and Wall Street is not selling anything.

    My complaint about Szymoniak is she was telling people she intended to pay off the property after she knew what they did was criminal. Settlement or not, that was immoral…these crooks stole a QUADRILLION dollars from the American people….What in the hell is she promoting paying these crooks any money for….? They belong in the hoosgow….

  14. LMAO …. Abby said i have already been Fraudclosed & Evicted….How would she know anything about the 2 fraudclosures I am fighting….? No I haven’t already been fraudclosed & evicted and I don’t know a damned thing about the New Century cases. She attacked me on another post because I said none of these liens are secure…..She accused me of being an attorney trying to butt in on her scam ….

    I tell it like it is & make no apologies for calling it as I see it.

  15. Some certified imbecile was demanding to see Lynn Szymoniak’s fruit.
    Here it is, which is a hell of a lot more than the moron of service has ever been able to compute, analyze and post.

    What is unbelievable is that:

    1) Fannie Mae was the biggest purchaser of foreclosures in the counties investigated, and
    2) FNMA sold to a handful of LLCs the great majority of them for… less than $25,000!!!

    Lynn lists those LLCs. Sobering.

    So, in essence, and as I posted a couple of years ago, America has been sold to and paid for by, everybody but Americans.

    http://mydebtrelease.com/debt-news/lynn-szymoniak-meet-neighbors-foreclosures-palm-beach-county-2012

  16. Well, banks did what they did. But they couldn’t have if… government had done its job. As in protecting its constituents. Our government spent the last 200 or 300 or even 2,000 years throwing us under banks’ buses. Can’t fault the banks. Need to give credit where credit is due. Nope, I ain’t paying Congress and government’s salaries any more. My money is too damn hard to come by. Can’t be wasted. Got netter plans for it.

    http://www.washingtonsblog.com/2013/03/stunning-crimes-of-the-big-banks-updated-list.html

    Jaw-Dropping Crimes of the Big Banks
    Posted on March 14, 2013 by WashingtonsBlog

    Preface: Not all banks are criminal enterprises. The wrongdoing of a particular bank cannot be attributed to other banks without proof. But – as documented below – many of the biggest banks have engaged in unimaginably bad behavior.
    You Won’t Believe What They’ve Done …

    Here are just some of the improprieties by big banks:

    Funding the Nazis

    Laundering money for terrorists

    Financing illegal arms deals, and funding the manufacture of cluster bombs (and see this and this) and other arms which are banned in most of the world

    Launching a coup against the President of the United States

    Handling money for rogue military operations

    Laundering money for drug cartels. See this, this, this, this and this (indeed, drug dealers kept the banking system afloat during the depths of the 2008 financial crisis)

    Engaging in mafia-style big-rigging fraud against local governments. See this, this and this

    Shaving money off of virtually every pension transaction they handled over the course of decades, stealing collectively billions of dollars from pensions worldwide. Details here, here, here, here, here, here, here, here, here, here, here and here

    Manipulating gold prices … on a daily basis

    Charging “storage fees” to store gold bullion … without even buying or storing any gold . And raiding allocated gold accounts

    Committing massive and pervasive fraud both when they initiated mortgage loans and when they foreclosed on them (and see this)

    Pledging the same mortgage multiple times to different buyers. See this, this, this, this and this. This would be like selling your car, and collecting money from 10 different buyers for the same car

    Cheating homeowners by gaming laws meant to protect people from unfair foreclosure

    Committing massive fraud in an $800 trillion dollar market which effects everything from mortgages, student loans, small business loans and city financing

    Manipulating the hundred trillion dollar derivatives market

    Engaging in insider trading of the most important financial information

    Pushing investments which they knew were terrible, and then betting against the same investments to make money for themselves. See this, this, this, this and this

    Engaging in unlawful “frontrunning” to manipulate markets. See this, this, this, this, this and this

    Engaging in unlawful “Wash Trades” to manipulate asset prices. See this, this and this

    Otherwise manipulating markets. And see this

    Participating in various Ponzi schemes. See this, this and this

    Charging veterans unlawful mortgage fees

    Helping the richest to illegally hide assets

    Cooking their books (and see this)

    Bribing and bullying ratings agencies to inflate ratings on their risky investments

    Violently cracking down on peaceful protesters

    The executives of the big banks invariably pretend that the hanky-panky was only committed by a couple of low-level rogue employees. But studies show that most of the fraud is committed by management.

  17. Odd…

    In the past three weeks, not one OH reversal based on Schwartzwald. In fact, pretty much no civil case reversals at all. Looks like OH has so much run out of money that it only hears criminal appeals.

    Might that be what the future holds nationwide? Time to file appeals left and right, people! Courts seem to be focusing on criminal vs. civil. Banks are no longer a priority!!!

    Appeal, appeal, appeal. And stay put!

  18. Stripes…. Explain Please.

  19. ABBY IN CA, on March 19, 2013 at 11:29 am said:

    and stripes–you know jackshit about the New Century case

    ABBY IN CA, on March 19, 2013 at 11:25 am said:
    stripes—you don’t have active case numbers because you already were foreclosed upon and evicted. you really have nothing to offer anybody on this website. people are really really bored with you

  20. They think they will never be held accountable for Defrauding the court….? They never think the will be held accountable for Defrauding the American people. The courts are making a fortune from these fraudclosure crimes against We The People…..It costs a couple hundred bucks for the Defendant to answer the Fraud complaint pro se….if you hire an attorney…it’s mega bucks.

  21. This is an evil plan by the Plutocrat politicians and the Oligarchs in Banking to wipe out the Private Sector and create one Global Secret and Open Totalitarian Mega Corp where all of the wealth stays at the top. The name of the Global Corp……NESARA…..ONE PEOPLES PUBLIC TRUST….&..THE AMERO…..AKA THE NEW WORLD ORDER… They will hand us crumbs like Social Justice fixes for massive criminal fraud…and Civil justice fixes like the Fair Religion and Marriage Act….. This is a Secret Mega Merger of Corporate Crooks Zionist/Illuminati Swindlers who hide behind Religion, Corporatism, Politics, Education, the Judiciary, Law Enforcement, Big Oil, Big Pharmacy and are all totalitarian control freaks who pay for nothing….invest in their own criminal fraud and fraudulently control from behind the scenes by investing in everything We The People pay for. These Corporate Crooks have stolen a QUADRILLION dollars of our wealth since this Global Banking & Insurance Scam began under Reagan/Bush in 1982. The repeal of Glass Steagall in 1999 was a cover up for what had already been going on Secretly since 1982. That sham Repeal and the NAFTA agreement earned Bill & Hillary $86 million dollars in his last term & Bill the title of President of the World and Hillary the SOS job. Traitors….

  22. Is the mortgage industry organized crime?

    by Chip Parker, Jacksonville Bankruptcy Attorney

    0inShare.

    Foreclosure defense attorneys are becoming increasingly frustrated by the dismal foreclosure statistics and are seeking help from our nation’s criminal prosecutors to investigate the possibility of bringing “foreclosure mills” and banks to justice under the Racketeer Influenced and Corrupt Organizations Act (RICO).

    Usually, when we hear terms like “organized crime” and “RICO,” we think of Tony Soprano and John Gotti. However, when the mortgage industry conspires to defraud middle class America, it make the Sopranos look more like the Brady Bunch.

    Every day, thousands of foreclosures are being illegally filed by foreclosure mills, with the full knowledge that their clients (the plaintiffs) do not have the legal standing to file the case. These banks and lawyers are not stupid. They know that 99%+ of all foreclosures in this country are never contested by the homeowner or real estate investor, but it still does not make it right.

    In almost every single foreclosure case filed in Florida, for example, the plaintiff (usually a mortgage-backed securitized trust) alleges that it owns and hold the note, but that the note was “lost.” This is an absolute lie. The plaintiff, who is almost never the originating lender, never accepted physical delivery of the note. Under the Uniform Commercial Code, the plaintiff is therefore not the owner and holder of the note. Besides, how can they lose something they never had?

    Additionally, a mortgage can only be assigned by following a very specific procedure that includes the recording of the mortgage assignment in the official records PRIOR to the filing of the foreclosure. This, too, hardly ever happens, which means the plaintiff has no standing to file the foreclosure complaint.

    Having actual possession and ownership of the note and mortgage are not “technical” issues. This has been a requirement since our country developed our legal system from English Common Law hundreds of years ago. Did the lawyers that sign these complaints miss this lecture in law school? Certainly not. They just do not think they will ever be held accountable for defrauding the court.

    Many lawyers that file these foreclosure complaints are fresh out of law school. I have seen foreclosure complaints signed by lawyers so new that they do not even have bar numbers. These newbies should have their “negotiable instruments” lecture fresh in their heads, but they are too euphoric from just being employed to realize that reputation is the only thing of value a lawyer possesses.

    If there is any justice, America will be waking up to headlines of State Attorney Generals seeking indictments against the people running the companies and law firms that are currently foreclosing on the middle class at record pace. The acronym “RICO” will become synonymous with the names of some well known banks, servicing companies and foreclosure mills.

    I will almost feel sorry for these young lawyers who may one day have to account to the state bar disciplinary board or, worse, law enforcement. Young lawyers are only a cog in the foreclosure machine, but let’s face it, any lawyer’s head always looks great mounted on the wall of a prosecutor’s office.

  23. Christine wants us to believe fraudclosure is the least of our problems. She wants us to take our eye off of the ball…..the dumping of the Securities Frauds by the banks and Wall Street via dumping our property into a Public Trust by the U.S. Treasury Dept via the Title Companies was Deceptive…..Concealment of Securities Fraud crimes committed in our names without our knowledge or consent was a BREACH OF NATIONAL SECURITY BY THE TRAITORS FROM WITHIN…..

  24. The Big 3 Corporate Gold, Oil and Drug Cartel are nothing but a debt cartel of no good swindlers. These crooks destroyed their contracts at the onset of their illegal scam and that is what they are hiding.

    The Title Companies dumping massive Securities Fraud of these Corporate crooks into a “Public Trust” to Conceal their crimes to our Property committed in our names without our authorization is criminal. These corporate crooks don’t own anything and what the U.S. Treasury did via the Title Companies was a BREACH OF NATIONAL SECURITY…& IS HIGH TREASON.

  25. Foreclosures… the least of humanity’s problems.

  26. Breach of What Contract? ….. Fuzzy Stuffs …… If they wont admit they are a party to the contract ….. who are you going to sue? The High Road goes both Ways! Yes Indeed! No Need to Be Greedy!

  27. It is my prayer that you will be abundantly blessed for all the good you are doing to help those who have been the victims of such high level crime in our society. I have been trying to get a reference for an attorney in Miami who could help my son with a foreclosure problem but have been unable to reach anyone. I have left a couple of messages at both the customer service number and at your law office and received no reply to date. Do you have an additional number that I might call to get the name and phone number of one of the attorneys that you have trained and/or are associated with you to provide assistance in a foreclosure matter. Thank you for your expeditions reply and continued blessings on you and your staff for your compassionate approach to practicing law. Mrs. E. Conley

  28. This is why I didn’t reply to their “Modification”/ whatever proposal. in essence they were getting me to acknowledge their “ownership” of the Property I owned In Az. Only 7 Years for anyone to finally catch on. Whoever can afford the most lawyers win. I lost $30,000 down pmt./ $40,000 Pmts. My wife had to move and they sold it supposedly at a “Trusee’s” Sale for $9,000 more than my original down payment. That’s OK. Their time will come; either here, or in the final Judgement.

  29. Supreme Court Refuses To Hear Goldman Sachs’ Appeal To Financial Crisis Lawsuit

    Reuters | Posted: 03/18/2013 11:44 am EDT | Updated: 03/18/2013 7:00 pm EDT

    By Lawrence Hurley and Jonathan Stempel

    WASHINGTON (Reuters) – Goldman Sachs Group Inc suffered a defeat on Monday as the U.S. Supreme Court let stand a decision forcing it to defend against claims it misled investors about mortgage securities that lost value during the 2008 financial crisis.

    Without comment, the court refused to consider Goldman’s appeal of a September 2012 decision by the 2nd U.S. Circuit Court of Appeals in New York. Goldman shares sank more than 2 percent.

    That court let the NECA-IBEW Health & Welfare Fund, which owned some mortgage-backed certificates underwritten by Goldman, sue on behalf of investors in certificates it did not own, but which were backed by mortgages from the same lenders.

    Goldman and other banks have faced thousands of lawsuits by investors seeking to recoup losses on mortgage securities.

    The bank has said that letting the 2nd Circuit decision stand could cost Wall Street tens of billions of dollars.

  30. Pride Cometh Before a Fall. Pride An American Vice.
    Justice is Coming..

    http://pridecomethbeforeafall.wordpress.com/2013/03/18/3/

  31. Judge Dismisses Investor Suit Against J.P. Morgan About Silver Prices -Reuters
    5:48 PM ET on Monday, March 18, 2013

    A federal judge dismissed an investor lawsuit against J.P. Morgan Chase & Co. (JPM) concerning silver prices, Reuters reported Monday.
    The judge said the plaintiffs, who bought and sold Comex silver futures and options contracts, failed to show that J.P. Morgan “intended to cause artificial prices to exist,” Reuters reported.
    Full story at http://www.reuters.com/article/2013/03/18/us-jpmorgan-silver-lawsuit-idUSBRE92H10520130318

    Not really surprising…

  32. Judge Dismisses Investor Suit Against J.P. Morgan About Silver Prices -Reuters
    5:48 PM ET on Monday, March 18, 2013

    A federal judge dismissed an investor lawsuit against J.P. Morgan Chase & Co. (JPM) concerning silver prices, Reuters reported Monday.
    The judge said the plaintiffs, who bought and sold Comex silver futures and options contracts, failed to show that J.P. Morgan “intended to cause artificial prices to exist,” Reuters reported.
    Full story at http://www.reuters.com/article/2013/03/18/us-jpmorgan-silver-lawsuit-idUSBRE92H10520130318
    Write to nymonitoring@dowjones.com

  33. THE PROBLEM WITH THE BANKSTERS IS WHERE DO WE START WITH THE BREACH OF CONTRACT?

    FROM THE BEGINING. DENY AND DISCOVER.

    NEVER AGAIN.

  34. Humpty Dumpty had a great fall And all the kings men could’nt put Humpty dumpty together again.

    NEVER AGAIN

  35. If everyone just said they have a certified check to pay off the mortgage , the Ponzi would be revealed. $3 trillion stolen !!!!!!!

  36. Years ago when I was STILL trying to get a modification , I went to a government sponsored roadshow with 20 different “lenders” including mine .. I was current but hanging by a thread and had submitted at least a half dozen full and complete packages either with tracking or via FAX. It was nearly a part time job assembling ANOTHER package and ANOTHER package and paying ANOTHER $30 or so to EXPRESS MAIL it… I was assigned a case manager at the roadshow and was instructed to default by that case manager (computer chat session) with the live banker across the table from me.

    @Jim ; What contract? Good Question … obviously in this context instructing to default whether or not the “bank” starts a customer on modified payment plan or not the bank has made a contract that they will accept the mod payment as pmt in full at that point and not come back at a later date using that lowered baseline to assess deficiencies since they instructed the buyer to default in order to be “considered” … the missed payments should not be held against the borrower.

  37. Greedy Buttwipes!! Its About Time they Got Nailed!! Thanks Neil!!

  38. “Breach of what contract?” asks Alice in Wonderland

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