Next Steps

After losing our case against Bank of America, we had to make some tough decisions about what to do next.  Here are the four options considered:

  1. appeal to the U.S. Supreme Court
  2. appeal to the Georgia Supreme Court
  3. file a new complaint in State Court
  4. do nothing

The answer to this question, it turns out, is highly dependent on the goals you’re hoping to achieve.  For me, the purpose in filing this lawsuit has always been complex.

Of course, I wanted to protect my home and my family.  But it was more than that.  I also wanted to learn more about our legal system.  I wanted to learn how it works, and how it can be used as an agent for positive change.  I wanted to test it as a possible approach to fixing what’s going wrong in the world today.

For all these reasons and more, Option 3 is the right way to go …

Refiling in state court will allow us to file a very targeted complaint that raises questions that need to be answered under Georgia law.  These are questions that could easily reach appeal, or even a Supreme Court.  In other words, by pursuing Option 3, we’ll retain all of the other options, and remain true to the goals that got this whole thing started.

As always, comments welcome …

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Appeal Denied

Well, after more than 4 and a half years, the 11 Circuit Court of Appeals ruled against us.  You can read the results here:  Ruling on Appeal

Basically, they judges completely ignored all of our Georgia law arguments, and only ruled on questions of Federal law – specifically the Fair Debt Collection Practices Act.  That means that they didn’t consider the false misrepresentations made by Bank of America that enticed many people (including us) into Federal court, even though it was never applicable.

Now, it’s time to decide our next course of action.  We have until Friday, August 22nd to appeal to the Georgia Supreme Court, and we have other options as well.  I’ll post our decision here shortly.

As always, comments welcome, and more soon …

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Final Response Filed …

Events that started in January of 2010, and resulted in a lawsuit filed by us against Bank of America in October of 2011, has reached its climax.  On March 7th, 2014, we filed our final court document in this lawsuit, posted here:  Fenello Reply Brief

Now our fate is in the hands of three judges in the 11th Circuit Court of Appeals.

Of course, if they find for us, then we’ll have to continue with our lawsuit in Federal Court.  If they find against us, then we’ll have to decide if we want to appeal this all the way to the U.S. Supreme Court.  Time will tell.

Either way, Bank of America is no longer involved in our current mortgage.  If the new servicer decides to behave like Bank of America, we’ll have start a new lawsuit — this time in state court.

As before, I’ll post updates on our progress on this blog, and copies of all major filings on  our Case Filings page.

And as always, comments  welcome.

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Bank of America Files Appellee Brief

(sorry for the delay – catching up this week)

Bank of America filed their Appellee Brief on February 18th.  They had called me the day before asking if they could get an extension.  Since they haven’t been very nice to me, and I could see no benefit from granting this, I said no thank you.

You can see a copy of their filing at BofA Appellee Brief.

Basically, they’ve ignored many arguments in my appeal, and resorted to reiterating why the court should find me in default.  This should play out to my advantage.  We’ll know soon enough.

More soon, and as always, comments welcome.

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Appeal Filed !!!

Yesterday, I filed our Appeal in the Eleventh Circuit Federal Court.  Here’s a summary:

Can pro se litigants find justice in the Eleventh Circuit of the Federal Courts? Can banks lie to their clients with impunity? Can they send letters that say one thing, then argue the opposite in court and get away with it? Can banks unjustly enrich themselves, by recovering more than their potential losses through insurance policies, legal settlements, and Federal incentives, tax breaks, shared-loss agreements, etc.?

Can the banks take a person’s home, even when their right to do so is challenged, without providing any evidence that they have standing?

That’s what this appeal is about. Plaintiffs pray that this Court will correct these wrongs, and find for the Plaintiffs in this case.

You can download the entire file here:  Fenello Appeal

Comments welcome …

Jay.

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Notice of Appeal Filed

After some consideration, I’m happy to announce that we filed our Notice of Appeal on December 4th.  Now our case is heading to a panel of three judges, the results of which can actually change the way that current case law is applied in three states:  Georgia, Florida and Alabama.

While there are dozens of appeal-able decisions that have brought us to this point, we will be focusing on just a couple.  These are court decisions that severely disadvantage homeowners and pro se litigants in these three states.

I’ll post my progress here, so that others may learn from my actions.

As always, comments welcome …

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Case Over, Fight Continues

Well, after two years in court, the final decision was “case dismissed.”  I made quite a few mistakes along the way, and learned quite a lot in the process.  You can read the latest by visiting the Order on Motion to Reconsider.

Now, we’ll need to decide if we’re going to appeal any of the rulings in this case.  We probably will.

Also, given the results of this case, and since our note has since been transferred to another servicer, we are now in a better position to fight the next attempt at foreclosure.  Either way, I’ll document it all here so that everyone can learn from my experience.

Thanks again for all the words of support, and stay tuned  … more to come.

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Continuing the Conversation on Disqus

Last post, I shared a comment I’d written using a new service called Disqus.  Since that time, I’ve had an experience that is forcing me to reevaluate my support of this service.

As a followup to an exchange I was having on WashingtonsBlog, two of my messages have simply disappeared.  They may have been moderated, which would be fine, but it would be nice to have a record of what I’d written, and why it had been moderated.

It also makes me wonder if my older postings can be deleted or moderated at any time, forever?

While I check these things out, I’m going to continue the conversation by sharing a copy of my second posting here:

Hi Beverly,

I feel your pain, and truly believe that your experience can help fix the problem you are describing.  Do you have a case number people can look up, or better still, an online archive?

Did you ever file an appeal?

I’ve recently added a background page to my site:
http://proseaction.org/blog/case-background/
and have most of the major filings online here:
http://proseaction.org/blog/case-history/

(cc: Beverly)

Comments welcome via Disqus below (for now):

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Trouble in the Federal Court System

While waiting for a ruling in our case, I’ve written a few online comments using a new web service called Disqus.  I liked it so much, I’ve added it to all of my blogs.  (See below to give it a try.)

Here’s a recent comment made using that system:

Hi Beverly,

I’m sorry you’re having trouble in the federal court system.

If it’s any consolation, many of the biggest corporations in the world have also had trouble getting their cases heard in federal court. This is because the federal system as it is currently implemented only allows cases that have some chance of winning to go to trial. Who decides if your case has some chance of winning? Your federal judge.

While every profession has unethical players, I refuse to believe that every federal judge is corrupt. In fact, I know from recent rulings that some federal judges are fair, and are willing to make brave decisions that go against established interests. Judge Rakoff in New York, and Judge Totenberg in Georgia, are two that come to mind.

To keep judges honest in their actions, each of their rulings are subject to review by one of 12 circuit Court of Appeals. You can find which one you belong to here: http://www.uscourts.gov/uscour…

If you are not finding justice in the federal courts, it could be the result of: 1) bad rulings, 2) bad law, or 3) bad representation. The first two can be addressed through appeal. For the last one, we can learn from each other to minimize the impact of our lack of experience and specialized knowledge.

State court is another powerful option. Just like the federal system, each state has its own court system, constitution, constitutional protections, and rules against murder, theft, fraud, etc. In other words, most of the charges you can make in federal court, you can also make in state court.

The challenge as I see it, is how to use the legal system to fix what’s going on in the world today. While you and I may end up losing our respective cases, the things we learn along the way will be of great benefit to the next people who want to challenge the status quo.

Comments welcome …

Jay Fenello
www.fenello.com

Source

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Wall Street Doesn’t Just Run the Show, They Write the Law

In response to this posting:

Wall Street Doesn’t Just Run the Show, They Write the Law

I wrote this:

Many of the laws written by corporations are so one-sided and egregious, that they violate civil liberties as guaranteed in our Constitution.

But lawsuits are expensive, and big corporations have a huge advantage in the courts. We need to start fighting these unconstitutional laws in a new way.

Instead of relying on donations to fund small teams of attorneys, we as individuals need to directly petition our government for redress. We need to bring our complaints to the courts as pro se litigants.

While we’ll lose at the beginning, we’ll have the advantage of a very low cost per lawsuit. That means we can bring them sequentially, one after the other, in coordinated ways. All while learning as we go. (court cases are public record, so every legal theory that’s put forward will be responded to by the court, giving insights into how we can win the next case).

Of course, all of this assumes that we still have justice in our justice system. Either way, we need to know. Comments welcome …

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